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CHURCH    AND    STATE 


THE    UNITED  STATES 


OR 


THE     AMERICAN     IDEA    OF     RELIGIOUS     LIBERTY 
AND    ITS    PRACTICAL    EFFECTS 


WITH  OFFICIAL  DOCUMENTS 


PHILIP  SCHAFF,  D.D.,  LL.D. 

M 

PROFESSOR  OF  CHURCH  HISTORY  IN  THE  UNION  THEOLOGICAL  SEMINARY  AT  NEW  YORK 


Reprinted  from  the  Papers  op  the  American  Historical  Association,  Vol.  II,  No.  4 


tJNIVEKBITl  ) 

NE^VORK 

CHARLES    SCRIBNER'S    SONS 
1889 


5  V 


Sc\  6  S  / 


COPYRIGHT   BY 

AMERICAN  HISTORICAL  ASSOCIATION 


Press  of 

G.  P.  Pui nam's  Sons 

New  York 


TO 

HIS  VENERABLE  FRIEND 

CHARLES  BUTLER,  LL.D. 

PRESIDENT    OF   THE   BOARD    OF    DIRECTORS 
AND  ONLY  SURVIVING  FOUNDER 

OF  THE 
UNION    THEOLOGICAL    SEMINARY 

WHO   AT   AN    AGE    OF    MORE    THAN    FOURSCORE    YEARS    PRESERVES    UNDIMINISHED    HIS    ZEAL    FOR 
THIS   INSTITUTION    OF   SACRED    LEARNING 

BY 

THE  AUTHOR 


PREFACE. 


This  little  work  is  a  contribution  to  American  Church 
History,  and  to  the  Centennial  Celebration  of  our  National 
Constitution.  It  discusses  that  part  of  the  Constitution 
which  protects  us  against  the  despotism  of  a  state  church, 
and  guarantees  to  us  the  free  exercise  and  enjoyment  of 
religion,  as  an  inherent,  inviolable,  and  inalienable  right  of 
every  man.  The  First  Amendment  is  the  Magna  Charta  of 
that  freedom,  and  well  worthy  to  be  set  forth  in  its  true 
light  with  its  antecedents,  surroundings,  and  effects  at  home 
and  abroad.  This  I  have  endeavored  to  do,  for  the  first  time, 
from  the  stand-point  of  a  church  historian  and  theologian. 

American  Church  History  has  yet  to  be  written.  We  are 
so  busy  making  history  that  we  have  little  time  to  study  and 
to  write  history.  But  monographs  on  sectional  and  local 
topics  are  multiplying  fast,  and  already  present  a  formidable 
mass  of  material  for  a  comprehensive  view  of  the  whole  field. 

There  is  scarcely  a  more  inviting  task  for  a  rising  Ameri- 
can historian  than  to  exhibit  from  the  broad  platform  of 
truth  and  justice,  in  life-like  reproduction,  the  genesis  and 
growth  of  American  Christianity  in  its  connections  with  the 
mother  Christianity  of  Europe,  its  distinctive  peculiarities, 
and  its  great  mission  for  the  future. 

THE    AUTHOR. 
Union  Theological  Seminary,  New  York, 
Nov.  24,  1887. 


CONTENTS. 


PAGE 

Preface     5 

Introduction g 

I. — The  American  Theory  of   the  Relation  of  Church  and 

State g  "^ 

II. — The  American  System  Compared  with  Other  Systems        .  12  "^ 

III. — The  Constitutional  Basis  of  the  American  System    .        .  17 

1.  Abolition  of  Religious  Tests 20 

2,  The  First  Amendment  to  the  Constitution    .        .  22  ' 
IV. — Action  of  the  State  Conventions — History  of  the  First 

Amendment       ....:....  25 
V. — The   Limitation  of   Religious   Liberty — Decision  ok  the 

U.  S.  Supreme  Court  on  Mormon  Polyg.a.my    .        ■  35  "^ 

VI. — The  Charge  of  Political  Atheism 3S 

VII. — The  Infidel  Program 43 

VIII. — The  State  Constitutions 45 

IX. — Religious  Liberty  in  the  Creeds 48  *^ 

X. — Christianity  and  the  Nation 53 

1.  Christian  Activity 56 

2.  Christian  Legislation 57 

3.  The  Oath 62 

4.  Official  Acts  of  Presidents 62 

5.  Exemption  of  Church  Property  from  Taxation      .  66 

6.  Chaplains  in  the  Army  and  Navy,  Congress,  and 

Legislatures 66 

7.  Recognition  of  the   Bible 67 

XI. — The  Connecting  Links  bf.tween  Church  and  St.\te     .         .  69 

I.  Marriage (^ 

5.  Sunday 69 

3.  Education 73 

7 


8  Contents. 


PAGE 


XII. — Results  of  the  American  System 78V 

XIII. — Progress  of  Religious  Freedom  in  Europe        ...  83 

1.  Great  Britain     .        . 84 

2.  Switzerland 87 

3.  The  German  Empire 90 

4.  Prussia 95 

5.  Scandinavia 105 

6.  Austria 106 

7.  Holland 106 

8.  France 108 

9.  Belgium 112 

10.  Italy 112 

11.  Spain  and  Portugal 114 

12.  Greece 117 

13.  Turkey 117 

Official  Documents  and  Standard  Opinions  on  Religious 
Liberty. 

DOCUMENT. 

I. — Provisions  of  the  U.  S.  Constitution  for  Religious  Liberty 
— Ordinance  of    Congress    for  the  Northvi^estern 

Territory 119 

II. — Decision  of  the  U.  S.  Supreme  Court  on  Religious  Liberty  119 
III. — Dr.  Franklin's  Speech  in  Support  of  Prayers  in  the  Con- 
stitutional Convention 123 

IV. — Acts  of  Congress  in  Regard  to  the  Bible    ....  125 

V. — Judge  Story's  Opinion  on  Religious  Liberty  in  the  U.  S.    .  128 

VI. — Dr.  Lieber's  Opinion 130 

VII. — Judge  Cooley's  Opinion 131 

VIII. — George  Bancroft's  Opinion 137 

IX. — Christianity  a  Part  of  the  Common  Law  of  Pennsylvania.  138 

X. — Christianity  a  Part  of  the  Common  Law  of  New  York     .  148 
XL— Decision  of  the  Supreme  Court  of  New  York  on  American 

Sunday  Laws 150 


V-  or  THf 

UNIVEKSITY 


CHURCH    AND    STATE   IN    THE    UNITED 

STATES. 


What  is  the  distinctive  character  of  American  Christianity 
in  its  organized  social  aspect  and  its  relation  to  the  national 
life,  as  compared  with  the  Christianity  of  Europe? 

It  is  a  FREE  CHURCH  IN  A  FREE  STATE,  or  a  SELF-SUP- 
PORTING AND  SELF-GOVERNING  CHRISTIANITY  IN  INDEPEND- 
ENT  BUTyRIENDLY  RELATION  TO  THE  CIVIL  GOVERNMENT. 

This  relationship  of  church  and  state  marks  an  epoch. 
It  is  a  new  chapter  in  the  history  of  Christianity,  and  the 
most  important  one  which  America  has  so  far  contributed. 
It  lies  at  the  base  of  our  religious  institutions  and  opera- 
tions, and  they  cannot  be  understood  without  it.  And  yet, 
strange  to  say,  it  has  never  received  the  treatment  it  de- 
serves, either  from  the  historical  or  the  philosophical  point 
of  view,  although  it  is  often  incidentally  mentioned,  espe- 
cially in  discussions  of  religion  in  the  public  schools.  It 
seems  to  be  regarded  as  a  self-evident  fact  and  truth  \\hich 
need  no  explanation  and  defence.  I  know  of  no  ecclesiasti- 
cal or  secular  history,  or  special  treatise,  which  gives  a  satis- 
factory account  of  it  ;  and  the  works  on  the  Constitution 
of  the  United  States  touch  only  on  the  legal  aspect  of  the 
religious  clauses,  or  pass  them  by  altogether. 

THE   AMERICAN   THEORY. 

The  relationship  of  church  and  state  in  the  United  States 
secures  full  liberty  of  religious  thought,  speech,  and  action, 
within  the  limits  of  the  public  peace  and  order.  It  makes 
persecution  impossible. 

Religion  and  liberty  are  inseparable.  Religion  is  volun- 
tary, and  canriot,  and  ought  not  to  be  forced. 

9 


10  Church  and  State  in  the  Ufiited  States. 

This  is  a  fundamental  article  of  the  American  creed,  with- 
out distinction  of  sect  or  party.    Liberty,  both  civil  and  relig- 
ious, is  an  American  instinct.     All  natives  suck  it  in  with 
the  mother's    milk  ;    all   immigrants  accept   it   as   a  happy 
—f>  boon,  especially  those  who  flee  from  oppression  and  perse- 

cution abroad.)  Even  those  who  reject  the  modern  theory 
of  liberty  enjoy  the  practice,  and  would  defend  it  in  their 
own  interest  against  any  attempt  to  overthrow  it. 

Such  liberty  is  impossible  on  the  basis  of  a  union  of 
church  and  state,  where  the  one  of  necessity  restricts  or 
controls  the  other.  It  requires  a  friendly  separation,  where 
each  power  is  entirely  independent  in  its  own  sphere.  The 
church,  as  such,  has  nothing  to  do  with  the  state  except  to 
obey  its  laws  and  to  strengthen  its  moral  foundations  ;  the 
\  state  has  nothmg  to  do  with  the  church_except  to  protect 
her  in  her  property  and  liberty;  and  the  state  must  be 
equally  just  to  all  forms  of  belief  and  unljelief  which  do  not 
/\  r\r    '   endanger  the  public  safety. 

The^ family,  the  church^nd  the  state  are  divine  institu- 
tions demanding  alike  our  obedience,  in  their  proper  sphere 
of  jurisdiction.  The  family  is  the  oldest  institution,  and 
the  source  of  church  and  state.  The  patriarchs  were  priests 
and  kings  of  their  households.  Church  and  state  ai-e  equally 
necessary,  and  as  inseparable  as  soul  and  body,  and  yet  as> 
distinct  as  soul  and  body.  The  church  is  instituted  for  the 
religious  interests  and  eternal  welfare  of  man;  the  state! 
for  his  secular  interests  and  temporal  welfare^\  The  one 
looks  to  heaven-as-  the  final  home  of  immortal  spirits,  the 
other  upon  our  mother  earth.  The  church  is  the  reign  of 
love ;  the  state  is  the  reign  of  justice.  The  former  is 
.['governed  by  the  gospel,  the  latter  by  the  law.  The  church 
exhorts,  and  uses  moral  suasion  ;  the  state  commands,  and 
enforces  obedience.  The  church  punishes  by  rebuke,  sus- 
pension, and  excommunication  ;  the  state  by  fines,  impris- 
onment, and  death.  Both  meet  on  questions  of  public 
morals,  and  both  together  constitute  civilized  human 
society  and  ensure  its  prosperity. 

The  root  of  this  theory  we  find  in  the  New  Testament. 


r\f4\ 


The  American   Theory.  II 

In  the  ancient  world  religion  and  politics  were  blended. 
Among  the  Jews  religion  ruled  the  state,  which  was  a  the- 
ocracy. Among  the  heathen  the  state  ruled  religion ;  the 
Roman  emperor  was  the  supreme  pontiff  {pontifex  maximus), 
the  gods  were  national,  and  the  priests  were  servants  of  the 
state. 

Christianity  had  at  first  no  ofificial  connection  with  the 
state, 

Christ  directs  us  to  render  unto  God  the  things  that  are 
God's,  and  unto  Caesar  the  things  that  are  Caesar's  (Matt, 
xxii.,  2i).  He  paid  the  tribute  money  to  the  Jewish  temple 
and  obeyed  the  laws  of  Rome,  but  he  refused  to  be  a  judge 
and  divider  of  the  inheritance  of  two  brothers,  as  lying 
outside  of  the  sphere  of  religion  (Luke  xii.,  14).  He  de- 
clared before  Pilate  that  his  kingdon  is  not  of  this  world 
(John  xviii.,  36),  and  rebuked  Peter  for  drawing  the  sword, 
even  in  defence  of  his  Master  (John  xviii.,  1 1).  When  the 
Evil  One  tempted  him  with  the  possession  of  all  the  king- 
doms of  this  world,  he  said  unto  him  :  "  Get  thee  hence, 
Satan  "  (Matt,  iv.,  10).  Secular  power  has  proved  a  satanic 
gift  to  the  church,  and  ecclesiastical  power  has  proved  an 
engine  of  tyranny  in  the  hands  of  the  state.'  The  apostles 
used  only  the  spiritual  weapons  of  truth  and  love  in  spread- 
ing the  gospel  of  salvation.  They  enjoined  obedience  to 
the  civil  power,  even  under  Nero  (Rom.  xiii.,  i  :  7),  but  they 
would  rather  suffer  imprisonment  and  death  than  obey  even 
their  own  Jewish  magistrate  against  the  dictates  of  tlieir 
conscience  (Acts  iv.,  29). 

If  men  had  always  acted  on  this  principle  and  example, 
history  would  have  been  spared  the  horrors  of  persecution 
and  religious  wars. 

For  three  hundred  years  the  Christian  church  kept  aloof 
from  politics,  and,  while  obeying  the  civil  laws  and  paying 

'  The  well-known  lines  of  Dante  ("  Inferno,"  xix.,  113-118)  which  refer  to 
the  fictitious  donation  of  Constantine  the  Great,  may  be  quoted  here  with  a 
wider  application  : 

"  Ah,  Constantine!  of  how  much  ill  was  mother, 
Not  thy  conversion,  but  that  marriage-dower 
Which  the  firbt  wealthy  Pope  received  of  thee." 


12  Church  and  State  in  the  United  States. 

tribute,  maintained  at  the  same  time  the  higher  law  of  con- 
science in  refusing  to  comply  with  idolatrous  customs  and  in 
professing  the  faith  in  the  face  of  death.  The  early  Apolo- 
gists— Justin  Martyr,  Tertullian,  Lactantius — boldly  claimed 
the  freedom  of  religion  as  a  natural  right/  When  the  first 
blood  of  heretics  (the  Priscillianists  in  Spain)  was  shed,  in 
385,  the  better  feeling  of  the  church,  as  expressed  by  Am- 
brose of  Milan,  and  Martin  of  Tours,  shrank  from  it  in 
horror/ 

THE  AMERICAN   SYSTEM  COMPARED  WITH  OTHER  SYSTEMS. 

The  American  relationship  of  church  and  state  differs 
from  all  previous  relationships  in  Europe  and  in  the  colonial 
period  of  our  history  ;  and  yet  it  rests  upon  them  and  reaps 
the  benefit  of  them  all.     For  history  is  an  organic  unit,  and 

»   American  history  has  its  roots  in  Europe. 

. —  I.  The  American  system  differs  from  the  ante-Nicene  or 
pre-Constantinian  separation  of  church  and  state,  when  the 
church  was  indeed,  as  with  us,  self-supporting  and  self-gov- 
erning, and  so  far   free  within,  but  under  persecution  from 

/  without,  being  treated  as  a  forbidden  religion  by  the  then 

,  heathen  state.  In  America  the  government  protects  the 
church  in  her  property  and  rights  without  interfering  with 

/.  her  internal  affairs.  By  the  power  of  truth  and  the  moral 
heroism  of  martyrdom  the  church  converted  the  Roman  Em- 
pire and  became  the  mother  of  Christian  states. 

2.  The  American  system  differs  from  the  hierarchical  con- 
trol of  the  church  over  the  state,  or  from  priest  government, 
which  prevailed  in  the  Middle  Ages  down  to  the  Reforma- 
tion, and  reached  its  culmination  in  the  Papacy.  It  confines 
the  church  to  her  proper  spiritual  vocation,  and  leaves  the 
state  independent  in  all  the  temporal  affairs  of  the  nation. 
The  hierarchical  theory  was  suited  to  the  times  after  the  fall 
of  the  Roman  Empire  and  the  ancient  civilization,  when  the 
state  was  a  rude  military  despotism,  when  the  church  was 

•  Schaff,  "Church  History"  (revised  ed.),  II.   35  sq. 
"  Ibid.,  vol.  III.  143. 


The  American  System  Compared  with  Other  Sys fetus.  13 

the  refuge  of  the  people,  when  the  Christian  priesthood  was 
in  sole  possession  of  learning  and  had  to  civilize  as  well  as 
to  evangelize  the  barbarians  of  northern  and  western  Europe. 
By  her  influence  over  legislation  the  church  abolished  bad 
laws  and  customs,  introduced  benevolent  institutions,  and 
created  a  Christian  state  controlled  by  the  spirit  of  justice 
and  humanity,  and  fit  for  self-government. 

3.  The  American  system  differs  from  the  Erastian  or  Ca^- 
saro-Papal  control  of  the  state  over  the  church,  which  ob- 
tained in  the  old  Byzantine  Empire,  and  prevails  in  modern 
Russia,  and  in  thiLProtestant  states  of  Europe,  where  the 

civil  government  protects  and  supports  the  church,  but  at  the   il,  A    A 
expense  of  her  dignity  and  independence,  and  deprives  her  ''.'^  ^^  ^ 
of  the  power  of  self-government.     The  Erastian  system  was 
based  on  the  assumption  that  all  citizens  are  also  Christians 
of  one  creed,  but  is  abnormal  in  the  mixed  character  of  govern- 
ment and  people  in  the  modern  state.     In  America,  the  state  j 
has  no   right  whatever  to  interfere  with  the  affairs  of  the 
church,  her  doctrine,  discipline,  and  worship,  and  the  appoint- 
ment of  ministers.     It  would  be  a  great  calamity  if  religion      \  i   1    a 
were  to  become  subject  to  our  ever-changing  politics. 

4.  The  American  system  differs  from  the  system  of  tolera- 
tion, which  began  in  Germany  with  the  Westphalia  Treaty, 
1648  ;  in  England  with  the  Act  of  Toleration,  1689,  and  which 
now  prevails  over  nearly  all  Europe  ;  of  late  years,  nominally 
at  least,  even  in  Roman  Catholic  countries,  to  the  very  gates 
of  the  Vatican,  in  spite  of  the  protest  of  the  Pope.  Tolera- — 
tion  exists  where  the  government  supports  one  or  more 
churches,  and  permits  other  religious  communities  under  the 
name  of  sects  (as  on  the  continent),  or  dissenters  and  noncon- 
formists (as  in  England),  under  certain  conditions.  In  Amer-. 
ica,  there  are  no  such  distinctions,  but  only  churches  or  de- 
nominations on  a  footing  of  perfect  equality  before  the  law. 
To  talk  about  any  particular  denomination  as  the  church,  or 
the  American  church,  has  no  meaning,  and  betrays  ignorance 
or  conceit.  Such  exclusiveness  is  natural  and  logical  in  Ro- 
manism, but  unnatural,  illogical,  and  contemptible  in  any 
other  church.     The  American  laws  know  no  such  institution 


14  Church  and  State  in  the  United  States. 

as  "  the  church,"  but  only  separate  and  independent  organi- 
zations. 

^'Toleration  is  an  important  step  from  state-churchism  to 
free-churchism.  But  it  is  only  a  step.  There  is  a  very 
great  difference  between  toleration  and  liberty.  Toleration 
is  a  concession,  which  may  be  withdrawn  ;  it  implies  a  pref- 
erence for  the  ruling  form  of  faith  and  worship,  and  a  prac- 
tical disapproval  of  all  other  forms.  It  may  be  coupled  with 
many  restrictions  and  disabilities.  We  tolerate  what  we  dis- 
like, but  cannot  alter;  we  tolerate  even  a  nuisance  if  we 
must.  Acts  of  toleration  are  wrung  from  a  government  by 
the  force  of  circumstances  and  the  power  of  a  minority  too 
influential  to  be  disregarded.  In  this  way  even  the  most 
despotic  governments,  as  those  of  Turkey  and  of  Russia,  are 
tolerant ;  the  one  toward  Christians  and  Jews,  the  other  tow- 
ard Mohammedans  and  dissenters  from  the  orthodox  Greek 
Church;  but  both  deny  the  right  of  self-extension  and  mis- 
sionary operations  except  in  favor  of  the  state  religion,  and 
both  forbid  and  punish  apostasy  from  it.  Prince  Gortscha- 
koff,  the  late  chancellor  of  the  Russian  Empire,  before  an 
international  deputation  of  the  Evangelical  Alliance,  pleading 
for  religious  freedom  in  behalf  of  the  persecuted  Lutherans 
of  the  Baltic  provinces  in  1871,  boldly  declared,  within  my 
hearing,  that  Russia  was  the  most  tolerant  country  in  the 
world,  and  pointed  in  proof  to  half  a  dozen  churches  of  dif- 
ferent denominations  in  the  principal  street  of  St.  Petersburg, 
but  protested  at  the  same  time  against  what  he  called  prop- 
agandism.  The  great  Russian  statesman  did  not,  or  would 
not  understand  the  vast  difference  between  toleration  and 
liberty.  The  English  Lord  Stanhope,  in  a  speech  in  the 
House  of  Lords  in  1827,  on  the  Bill  for  the  Repeal  of  the 
Test  and  Corporation  Acts,  said :  "  The  time  was,  when 
toleration  was  craved  by  dissenters  as  a  boon ;  it  is  now  de- 
manded as  a  right ;  but  a  time  will  come  when  it  will  be 
spurned  as  an  insult." 

In  our  country  we  ask  no  toleration  for  religion  and  its 
free  exercise,  but  we  claim  it  as  an  inalienable  right.  "  It  is 
not  toleration,"  says  Judge  Cooley,  "  which  is  established  in 


The  American  System  Compared  with  Other  Systems.  15 

our  system,  but  religious  equality."  Freedom  of  religion  is 
one  of  the  greatest  gifts  of  God  to  man,  without  distinction 
of  race  and  color.     He  is  the  author  and  lord  of  conscience, 

)  and)no_gower  on  earth  has  a  right  to  stand  between  God  and 
the  conscience.:  A  violation  of  this  divine  law  written  in 
the  heart  is  an  assault  upon  the  majesty  of  God  and  the 
image  of  God  in  man.  Granting  the  freedom  of  conscience, 
we  must,  by  logical  necessity,  also  grant  the  freedom  of  its 
manifestation  and  exercise  in  public  worship.  To  concede 
the  first  and  to  deny  the  second,  after  the  manner  of  despotic 
governments,  is  to  imprison  the  conscience.  To  be  just,  the 
state  must  either  support  all  or  none  of  the  religions  of  its 
citizens.     Our  government  supports  none,  but  protects  all. 

"^  5.  Finally — and  this  we  would  emphasize  as  especially  im- 
portant in  our  time, — the  American  system  differs  radically 
and  fundamentally  from  the  infidel  and  red-republican  theory 
of  religious  freedom.  The  word  freedom  is  one  of  the  most 
abused  words  in  the  vocabulary.  Xrue_liherty  is  a  positive 
force,  j^egulated  by  law  ;  false  liberty  is  a  negative  force,  a 
release  from  restraint.  True  liberty  is  the  moral  power  of 
selt^vemmenr;  the  liberty  of  infidels  and  anarchists  is 
carnal  licentiousness.  The  American  separation  of  church 
and  state  rests  on  respect  for  the  church  ;  the  infidel  separa- 
tion, on  indifference  and  hatred  of  the  church,  and  of  religion 
itself. 

The  infidel  theory  was  tried  and  failed  in  the  first  Revo- 
lution of  France.  It  began  with  toleration,  and  ended  with 
the  abolition  of  Christianity,  and  with  the  reign  of  terror, 
which  in  turn  prepared  the  way  for  military  despotism  as 
the    only  means  of  saving  society  from  anarchy  and  ruin. 

<'Our  infidels  and  anarchists  would  re-enact  this  tragedy  if 
xhey  should  ever  get  the  power.  They  openly  profess  their 
hatred  and  contempt  of  our  Sunday-laws,  our  Sabbaths,  our 
'  churches,  and  all  our  religious  institutions  and  societies.  Let 
us  beware  of  them  !  The  American  system  grants  freedom 
also  to  irreligion  and  infidelity,  but  only  within  the  limits  of 
the  order  and  safety  of  society.  The  destruction  of  religion 
would  be  the  destruction  of  morality  and  the  ruin  of  the 


U' 


1 6  Church  and  State  in  the  United  States. 

state.  Civil  liberty  requires  for  its  support  religious  liberty, 
and  cannot  prosper  without  it.  Religious  liberty  is  not  an 
empty  sound,  but  an  orderly  exercise  oLreligious  duties  and 
i  enjoyment  of  all  its  privileges>t  It  is  fr^dim  in  religion,  not 
P  'freedom /r(7;;/  religion  ;  as  true  civil  liberty  is  freedom  mlaw, 
and  not  freedom  front  law.     Says  Goethe  : 

' '  In  der  Beschrdnkung  erst  zeigt  sich  der  Meister, 
Und  das  Gesetz  nur  kann  dir  Freiheit geben." 

Republican  institutions  in  the  hands  of  a  virtuous  and 
God-fearing  nation  are  the  very  best  in  the  world,  but  in  the 
hands  of  a  corrupt  and  irreligious  people  they  are  the  very 
worst,  and  the  most  effective  weapons  of  destruction.  An 
indignant  people  may  rise  in  rebellion  against  a  cruel  tyrant; 
but  who  will  rise  against  the  tyranny  of  the  people  in  pos- 
session of  the  ballot-box  and  the  whole  machinery  of  govern- 
ment ?  Here  lies  our  great  danger,  and  it  is  increasing  every 
year. 

Destroy  our  churches,  close  our  Sunday-schools,  abolish 

the  Lord's  Day,  and  our  republic  would  become  an  empty 

shell,  and  our  people  would  tend  to  heathenism  and  barba- 

y-rism.    Christianity  is  the  most  powerful  factor  in  our  society 

^'4^  ^  and  the,  pillar  oj^  our  institutions.     It  regulates  the  family; 

A  A    ;  it  enjoins  private  anH^public^irtue  ;  it  builds  up  moral  char- 
acter  ;  it  teaches  us  to  love  God  supremely,  and  our  neigh- 

^  A/bor  as  ourselves  ;  it  makes  good  men  and  useful  citizens  ;  it 
denounces  every  vice  ;  it  encourages  every  virtue ;  it  promotes 
and  serves  the  public  welfare ;  it  upholds  peace  and  order. 
■C^Qhristianity  is  the  only  possible  religion  for  the  American 
people,  and  with  Christianity  are  bound  up  all  our  hopes  for 
the  future. 

This  was  strongly  felt  by  Washington,  the  father  of  his 
country,  "  first  in  war,  first  in  peace,  and  first  in  the  hearts  of 
his  countrymen  "  ;  and  no  passage  in  his  immortal  farewell 
address  is  more  truthful,  wise,  and  worthy  of  constant  re- 
membrance by  every  American  statesman  and  citizen  than 
that  in  which  he  affirms  the  inseparable  connection  of  relig- 

'\/\/\j  ion  with  morality  and  national  prosperity.     , 


TJie  Cojistitutional  Basis  of  the  American  Sj's/em.       ly 

THE   CONSTITUTIONAL   BASIS   OF   THE  AMERICAN  SYSTEM. 

The  legal  basis  of  American  Christianity  in  its  relation  to 
the  civil  government  is  laid  down  in  the  Constitution  of  the 
United  States,  which  this  year  enters  upon  its  second  cen- 
tennial. 

This  great  document  was  framed  after  the  achievement  of 
national  independence  in  a  convention  of  delegates  from 
twelve  of  the  original  States  (all  except  Rhode  Island),  in 
the  city  of  Philadelphia,  between  May  14th  and  September 
17,  1787,  by  the  combined  wisdom  of  such  statesmen  as 
Hamilton,  Madison,  King,  Morris,  Sherman,  Dickinson, 
Pinckney,  Franklin,  under  the  presiding  genius  of  Wash- 
ington. It  was  ratified  by  eleven  States  before  the  close  of 
the  year  1788,  and  went  into  operation  in  March,  1789.'  It 
was  materially  improved  by  ten  amendments,  which  were 
recommended  by  several  States  as  a  guarantee  of  fundamen- 
tal rights,  proposed  by  the  first  Congress  in  1789-90,  and 
adopted  in  1791.  To  these  were  subsequently  added  five 
new  amendments,  namely:  Article  XI.  in  1793;  Article 
XII.  in  1803  ;  Article  XIII.  in  1865  ;  Article  XIV.  in  1868; 
Article  XV.  in  1870.  The  last  three  are  the  result  of  the 
civil  war,  and  forbid  slavery,  declare  the  citizenship  of  all 
persons  born  or  naturalized  in  the  United  States,  and  secure 
the  right  of  citizens  to  vote  irrespective  "  of  race,  color,  or 
previous  condition  of  servitude." 

'  Delaware  (Dec.  7,  1787),  New  Jersey  (Dec.  18,  17S7),  Georgia  (Jan.  2, 
1788),  and  Maryland  (April  28,  17S3)  ratified  the  Constitution  unanimously  and 
unconditionally  ;  Pennsylvania  (Dec.  12,  1787),  with  a  majority  of  15  (45  out  of 
60)  ;  Connecticut  (Jan.  g,  17S8),  with  a  majority  of  88  (128  against  40)  ;  Massa- 
chusetts (Feb.  7,  1788),  by  a  vote  of  187  to  168  ;  South  Carolina  (May  23,  17SS), 
with  three  recommendations  ;  Virginia  (July  26,  1788),  by  a  majority  of  10  (89 
to  79),  and  with  a  declaration  of  a  bill  of  rights  ;  New  Hampshire  (June  2i, 
1788),  with  twelve  alterations  and  provisions  ;  New  York  (July  26,  1788),  with  a 
majority  of  only  three  (30  to  27).  The  remaining  two  States  adopted  the  Con- 
stitution afterward — North  Carolina,  November  21,  17S9  ;  Rhode  Island,  May 
29,  1790.  During  the  deliberations  for  its  adoption,  it  was  ably  defended  by 
Alexander  Hamilton,  of  New  York,  James  Madison,  of  Virginia,  and  John  Jay, 
of  New  York,  in  T/ie  Federalist  (17S7  to  17SS),  against  the  attacks  of  the  anti- 
Federalists — newly  edited  by  John  C.  Hamilton,  Philadelphia  (Lippincott  & 
Co.),  1873,  (659  pages).  Another  edition  by  Henry  B.  Dawson,  New  York, 
1878  (615  pages)..^  But  The  Federalist  is  silent  on  the  subject  of  religion.  ]^j/'^ 


i8  Church  and  State  in  the  United  States. 

This  Constitution,  including  the  fifteen  amendments,  is 
"  the  supreme  law  of  the  land," — that  is,  of  all  the  States 
and  Territories  belonging  to  the  United  States.  It  ex- 
presses the  sovereign  will  and  authority  of  the  people,  which, 
under  God,  is  the  source  of  civil  power  and  legislation  in  a 
free  country.  It  can  only  be  altered  and  amended  by  the 
same  authority.  Experience  has  proved  its  wisdom  and 
deepened  the  attachment  to  its  provisions.  And,  having 
stood  the  fiery  ordeal  of  a  gigantic  civil  war,  it  may  be  con- 
sidered safe  and  sound  for  generations  to  come.  Although 
by  no  means  perfect,  it  is  the  best  that  could  be  made  for 
this  western  republic  by  its  thirty-nine  framers,  whom  Alex- 
ander Hamilton  Stephens  (the  Vice-President  of  the  late 
Southern  Confederacy)  calls  "  the  ablest  body  of  jurists,  legis- 
lators, and  statesmen  that  has  ever  assembled  on  the  conti- 
nent of  America."  '  Most  of  them  were  conspicuous  for 
practical  experience  in  statesmanship  and  for  services  to  the 
cause  of  liberty  ;  and  they  had  the  great  advantage  of  draw- 
ing lessons  of  wisdom  from  the  various  State  Constitutions, 
the  Articles  of  Confederation,  the  British  Constitution,  the 
Swiss  and  Dutch  Confederacies,  as  well  as  from  ancient 
Greece  and  Rome.  Their  patriotism  had  been  tried  in  the 
furnace  of  the  War  of  Independence.  James  Madison, 
afterwards  President  of  the  United  States,  who  preserved 
for  posterity  the  debates  of  the  Convention,  gives  it  as  his 
profound  conviction,  "  that  there  never  was  an  assembly  of 
men,  charged  with  a  great  and  arduous  trust,  who  were  more 
pure  in  their  motives,  or  more  exclusively  or  anxiously  de- 
voted to  the  object  committed  to  them,  than  were  the  mem- 
bers of  the  Federal  Convention  of  1787,  to  the  object  of  de- 
vising and  proposing  a  constitutional  system  which  should 
best  supply  the  defects  of  that  which  it  was  to  replace,  and 
best  secure  the  permanent  liberty  and  happiness  of  their 
country."  " 

'  In  Johnson's  "  Universal  Cyclop.,"  revised  edition,  II.  243. 

*  In  Jonathan  Elliot's  "Debates  of  the  Several  State  Conventions  on  the 
Adoption  of  the  Constitution,"  vol.  V.,  p.  122.  This  and  the  following  quota- 
tions are  from  the  second  and  enlarged  edition  of  this  important  work,  pub- 
lished by  Lippincott,  Philadelphia,  1876,  in  5  vols.    The  first  edition,  in  4  vols.. 


TJie  Constitutional  Basis  of  the  Amcricayi  System.       19 

The  sessions  were  secret.  The  difficulties  were  serious : 
jealousies  between  the  larger  and  smaller,  the  Northern  and 
Southern  States;  differences  of  opinioncon  cerning  the  con- 
tinuation or  prohibition  of  the  African  slave-trade  ;  the  nature 
and  extent  of  the  executive,  legislative,  and  judicial  de- 
partments of  the  general  government ;  and  especially  the 
power  of  the  United  States  in  relation  to  the  separate  States. 
At  times,  conciliation  of  the  conflicting  interests  seemed 
hopeless,  and  it  was  during  one  of  those  periods  of  gloom 
that  Dr.  Franklin,  then  eighty-one  years  of  age,  read  his  re- 
markable speech  in  advocacy  of  seeking  wisdom  from  the 
Almighty  hearer  of  prayer. 

But  after  four  months  of  patient  deliberation  and  mutual 
concession,  the  Constitution  was  matured  and  duly  signed  l 
by  all  the  delegates.  It  was  by  no  means  entirely  new,  but  / 
borrowed  wisdom  from  the  experience  of  the  past  as  laid 
down  in  British  and  American  documents  of  tried  states- 
manship and  legislation  ;  and  it  is  all  the  better  for  it.  With 
this  qualification  we  may  accept  the  eulogy  of  W.  E.  Glad- 
stone, one  of  the  most  learned  of  English  statesmen,  who 
calls  the  American  Constitution  "  the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man."  '  Cardinal  Gibbons,  of  Baltimore,  in  accepting  the  in- 
vitation to  attend  the  centennial  celebration  of  the  Constitu- 
tion at  Philadelphia,  September,  1S87,  says:  "  The  Consti- 
tution of  the  United  States  is  worthy  of  being  written  in 

appeared  in  Washington,  1830.  The  fifth  volume  contains  Madison's  diary  of 
the  debates  in  the  Federal  Convention,  of  which  he  was  the  most  regular  at- 
tendant and  one  of  the  most  influential  members.  "  The  Madison  Papers,  "pur- 
chased by  order  of  Congress  after  his  death,  in  his  eighty-fifth  year  (June  23, 
1836),  were  first  published  by  Henry  D.  Gilpin,  Washington,  1S40,  in  3  vols. 
The  Debates  of  the  P'ederal  Convention  are  contained  in  vols.  II.  and  III.,  and 
the  passage  quoted  above  is  in  vol.  II.,  p.  718  sq,,  at  the  close  of  his  introduc- 
tion to  the  Debates. 

'  Or,  as  he  more  recently  expressed  it  :  "  The  most  remarkable  work  known 
to  the  modern  times  to  have  been  produced  by  human  intellect  at  a  single  stroke, 
so  to  speak,  in  its  application  to  political  affairs."  See  his  letter  of  July  20, 
1887,  declining,  for  good  reasons,  a  most  flattering  invitation  to  attend  the  cen- 
tennial celebration  of  the  Constitution,  as  the  guest  of  the  American  people. 
And  yet  Gladstone  doubted  the  success  of  the  Union  in  the  civil  war. 


^ 


20  Church  and  State  in  the  United  States. 

letters  of  gold.  It  is  a  charter  by  which  the  Hberties  of 
sixty  milHons  of  people  are  secured,  and  by  which,  under 
Providence,  the  temporal  happiness  of  countless  millions  yet 
unborn  will  be  perpetuated."  '  Justice^Miller,  in  his  memo- 
rial oration  (September  17,  1887),  finds  the  chief  characteris- 
tic of  the  Constitution  in  this  :  That  "  it  is  the  first  success- 
ful attempt  in  the  history  of  the  world  to  lay  the  deep  and 
broad  foundations  of  a  government  for  millions  of  people 
and  an  unlimited  territory  in  a  single  written  instrument, 
framed  and  adopted  in  one  great  national  effort.  This  in- 
strument comes  nearer  than  any  of  political  origin  to  Rous- 
seau's idea  of  a  society  founded  on  a  social  contract.  In  its 
formation,  States  and  individuals,  in  the  possession  of  equal 
rights — the  rights  of  human  nature  common  to  all, — met  to- 
gether and  deliberately  agreed  to  give  up  certain  of  those 
rights  to  government  for  the  better  security  of  others  ;  and 
that  there  might  be  no  mistake  about  this  agreement  it  was 
reduced  to  writing,  with  all  the  solemnities  which  give  sanc- 
tion to  the  pledges  of  mankind." 

ABOLITION    OF    RELIGIOUS   TESTS. 

Two  provisions  in  this  Constitution  bear  on  the  question 
of  religion,  and  secure  its  freedom  and  independence. 

I.  The  Constitution  declares,  in  Article  VI.,  §  3,  that  all 
senators  and  representatives  of  the  United  States,  and  the 
members  of  the  several  State  legislatures,  and  all  executive 
and  judicial  officers,  both  of  the  United  States  and  of  the 
several  States,  "  shall  be  bound,  by  oath  or  affirmation,  to 
support  this  Constitution  :  but  no  religious  test  shall  ever  be 
rcqjiired  as  a  qualification  to  any  office  or  public  trust  mider 
the  United  States.''  ^ 

This  is  negative,  and  excludes  the  establishment  of  any 
particular  church  or  denomination  as  the  national  religion. 

'  Cardinal  Gibbons  made  the  concluding,  Bishop  Potter,  of  New  York,  the 
opening  prayer  at  the  celebration  of  September  17,  1S87. 

*  I  give  the  text  and  punctuation  as  in  the  original  copy  in  the  Department 
of  State  at  Washington.     Elliot's  "  Debates,"  I.  5. 


Abolition  of  Religious  Tests.  21 

It  secures  the  freedom  and  independence  of  the  State  from 
ecclesiastical  domination  and  interference. 

The  clause  was  proposed  by  Charles  Pinckney,  of  South 
Carolina.  Roger  Sherman  "  thought  it  unnecessary,  the 
prevailing  liberality  being  a  sufificient  security  against  such 
tests."  Gouverneur  Morris  of  Pennsylvania,  and  General 
Charles  Cotesworth  Pinckney  of  South  Carolina  approved 
the  motion,  whereupon  "  the  motion  was  agreed  to,  nem.con., 
and  then  the  whole  article.  North  Carolina  only,  no  ;  and 
Maryland  divided."  '  The  clause,  however,  as  we  shall  see, 
met  with  considerable  objection  afterwards  in  Massachusetts 
and  North  Carolina. 

Religious  tests,  whether  of  dogma  or  worship,  were  used 
by  despotic  governments,  especially  in  England  under  the 
Stuarts,  as  means  of  excluding  certain  classes  of  persons, 
otherwise  qualified,  from  public  offices  and  their  emolu- 
ments. Blackstone  defends  such  tests  as  means  of  self- 
preservation,  but  is  opposed  to  prosecution.''  They  were  en- 
forced in  all  American  colonies,  except  in  Rhode  Island. 
The  early  settlers  came  from  Europe  to  seek  freedom  fori 
themselves,  and  then  inconsistently  denied  it  to  others,  from/ 
fear  of  losing  the  monopoly.  In  Massachusetts,  Congrega- 
tionalists  had  exclusive  control ;  in  Virginia  the  Church  of 
England,  for  a  century  and  a  half.  Even  in  the  Quaker  col- 
ony of  Pennsylvania  toleration  was  limited  by  the  Toleration 
Act  of  1689,  contrary  to  the  design  of  William  Penn  ;  and 
all  legislators,  judges,  and  public  officers  had  to  declare  and 

•  This  is  the  information  on  the  subject  given  by  Madison  in  the  "  Debates 
of  the  Federal  Convention,"  in  the  fifth  and  last  vol.  of  Elliot's  "  Debates," 
p.  498.  In  the  official  "  Journal  of  the  Federal  Convention,"  Elliot,  vol.  I., 
p.  277,  it  is  simply  stated  that  the  clause,  "  but  no  religious  test,"  etc.,  passed 
unanimously  in  the  affirmative. 

*  "  Commentaries  on  the  Laws  of  England,"  Book  IV.  59  and  439.  Black- 
stone  advocates  limited  toleration,  and  says  (IV.  52)  :  "  Certainly  our  ancestors 
were  mistaken  in  their  plans  of  compulsion  and  intolerance.  The  sin  of 
schism,  as  such,  is  by  no  means  the  object  of  temporal  coercion  and  punish- 
ment. .  .  .  The  magistrate  is  bound  to  protect  the  established  church. 
.  .  .  But,  this  point  being  once  secured,  all  persecution  for  diversity  of 
opinions,  however  ridiculous  or  absurd  they  may  be,  is  contrary  to  every  prin- 
ciple of  sound  policy  and  civil  freedom." 


22  Church  and  State  in  the  United  States. 

subscribe  their  disbelief  in  transubstantiation,  the  adoration 
of  the  Virgin  Mary  and  other  saints,  and  the  sacrifice  of  the 
Romish  mass,  as  "  superstitious  and  idolatrous,"  and  their  be- 
lief in  the  Holy  Trinity  and  the  divine  inspiration  of  the 
Holy  Scriptures.  This  test  was  in  force  from  1703  till  the 
time  of  the  Revolution,  when,  through  the  influence  of  Ben- 
jamin Franklin,  it  was  removed  from  the  State  Constitution 
framed  by  the  Convention  of  1776.  In  Rhode  Island,  the 
Roman  Catholics  were  deprived  for  a  time  of  the  right  of 
voting,  but  this  disqualification  was  no  part  of  the  original 
colonial  charter,  and  is  inconsistent  with  "the  soul-liberty" 
of  Roger  Williams,  the  founder  of  that  State. 

The  framers  of  the  Federal  Constitution,  remembering 
the  persecution  of  dissenters  and  nonconformists  in  the 
mother  country  and  in  several  American  colonies,  cut  the 
poisonous  tree  of  persecution  by  the  root,  and  substituted 
for  specific  religious  tests  a  simple  oath  or  solemn  afifirma- 
tion. 

The  discontent  with  state-churchism  and  its  injustice 
toward  dissenting  convictions  was  one  of  the  remote  causes 
of  the  American  Revolution. 

THE   FIRST  AMENDMENT   TO   THE   CONSTITUTION. 

'  2.  More  important  than  this  clause  is  the  first  amend- 
ment, which  may  be  called  the  Magna  Charta  of  religious 
freedom  in  the  United  States.' 

The  first  amendment  provides  that  "  Congress  shall  make 
no  law  respectiitg  an  establishment  of  religio7i,  or  prohibiting 
the  free  exercise  thereof ;  or  abridging  the  freedom  of  speech 
or  of  the  press  ;  or  the  right  of  the  people  peaceably  to  as- 
semble, and  to  petition  the  government  for  a  redress  of 
grievances." 

This  amendment   is   positive  and   protective,  and  consti- 

'  It  is  a  serious  defect  of  the  two  best  histories  of  the  American  Constitution 
by  George  Ticknor  Curtis  (New  York,  Harper  &  Bro.,  1854  and  1858,  2  vols.), 
and  by  George  Bancroft  (New  York,  D.  Appleton  &  Co.,  third  ed..  18S3,  2 
vols.),  that  they  do  not  embrace  a  history  of  the  amendments,  which  for  our 
purpose  is  the  most  important. 


The  First  Amendment  to  the  Constitution.  23 

tutes  a  bill  of  rights.  It  prevents  not  only  the  establishmcnf^ 
of  a  particular  church,  as  the  exclusive  statc-rcligion,  but  it 
expressly  guarantees  at  the  same  time  to  all  the  churches 
the  full  liberty  of  religion  in  its  public  exercise,  and  forbids 
Congress  ever  to  abridge  this  liberty.  Religious  liberty  is 
regarded  as  one  of  the  fundamental  and  inalienable  rights  of 
an  American  citizen,  and  is  associated  with  the  liberty  of 
speech  and  of  the  press,  the  right  of  peaceable  assembly  and 
of  petition. 

A  large  number  of  the  most  valuable  provisions  of  the 
Magna  Charta,  which  the  clergy,  the  barons,  and  freemen 
of  England  wrung  from  the  despotism  of  King  John  in  12 15, 
and  of  the  Bill  of  Rights,  which  was  enacted  against  the 
despotism  of  the  Stuarts  in  1688,  consist  of  the  solemn 
recognitions  of  limitations  upon  the  power  of  the  Crown 
and  the  power  of  Parliament,  such  as  the  writ  of  habeas 
corpus,  the  right  of  trial  by  jury,  the  protection  of  life, 
liberty,  and  property  from  arbitrary  spoliation,  the  right  of 
petition,  the  right  to  bear  arms,  freedom  of  commerce. 
Several  of  these  provisions  are  literally  inserted  among  the 
amendments  to  our  Constitution.  But  it  was  left  for 
America  to  abolish  forever  the  tyranny  of  a  state-religion,  ^ 
and  to  secure  the  most  sacred  of  all  rights  and  liberties  to 
all  her  citizens — the  liberty  of  religion  and  the  free  exercise 
thereof. 

The  United  States  furnishes  the  first  example  in  history 
of  a  government  deliberately  depriving  itself  of  all  legislative  ^ 
control  over  religion,  which  was  justly  regarded  by  all  older 
governments  as  the  chief  support  of  public  morality,  order, 
peace,  and  prosperity.  But  it  was  an  act  of  wisdom  and  jus- 
tice rather  than  self-denial.  Congress  was  shut  up  to  this 
course  by  the  previous  history  of  the  American  colonies  and 
the  actual  condition  of  things  at  the  time  of  the  formation 
of  the  national  government.  The  Constitution  did  not 
create  a  nation,  nor  its  religion  and  institutions.  It  found 
them  already  existing,  and  was  framed  for  the  purpose  of 
protecting  them  under  a  republican  form  of  government,  in 
a  rule  of  the  people,  by  the  people,   and   for  the  people. 


24  Church  and  State  in  the  United  States. 

Nearly  all  the  branches  of  the  Christian  Church  were  then 
represented  in  America.  New  England  was  settled  by  Con- 
gregationalists ;  Virginia,  the  Carolinas,  and  Georgia,  by 
Episcopalians  ;  New  York,  by  Dutch  Reformed,  followed  by 
Episcopalians  ;  Rhode  Island,  by  Baptists ;  Pennsylvania, 
by  Quakers ;  Maryland,  by  Roman  Catholics  ;  while  Pres- 
byterians, Methodists,  Lutherans,  German  Reformed,  French 
Huguenots,  Moravians,  Mennonites,  etc.,  were  scattered 
through  several  colonies.  In  some  States  there  was  an  es- 
tablished church  ;  in  others  the  mixed  system  of  toleration 
prevailed.  The  Baptists  and  Quakers,  who  were  victims  of 
persecution  and  nurslings  of  adversity,  professed  full  religious 
freedom  as  an  article  of  their  creed.  All  colonies,  with  the 
effectual  aid  of  the  churches  and  clergy,  had  taken  part  in 
the  achievement  of  national  independence,  and  had  an  equal 
claim  to  the  protection  of  their  rights  and  institutions  by 
the  national  government. 

The  framers  of  the  Constitution,  therefore,  had  no  right 
and  no  intention  to  interfere  with  the  religion  of  the  citizens 
of  any  State,  or  to  discriminate  between  denominations ; 
their  only  just  and  wise  course  was  to  leave  the  subject  of 
religion  with  the  several  States,  to  put  all  churches  on  an 
equal  footing  before  the  national  law,  and  to  secure  to  them 
equal  protection.  Liberty  of  all  is  the  best  guarantee  of  the 
liberty  of  each. 

North  America  was  predestined  from  the  very  beginning 
for  the  largest  religious  and  civil  freedom,  however  imperfect- 
ly it  was  understood  by  the  first  settlers.  It  offered  a  hos- 
pitable home  to  emigrants  of  all  nations  and  creeds.  The 
great  statesmen  of  the  Philadelphia  Convention  recognized 
this  providential  destiny,  and  adapted  the  Constitution  to  it. 
They  could  not  do  otherwise.  To  assume  the  control  of  re- 
ligion in  any  shape,  except  by  way  of  protection,  would  have 
been  an  act  of  usurpation,  and  been  stoutly  resisted  by  all  the 
States. 

Thus  Congress  was  led  by  Providence  to  establish  a  new 
system,  which  differed  from  that  of  Europe  and  the  Colonies, 
and  set  an  example  to  the  several  States  for  imitation. 


TJie  Action  of  the  State  Conventions,  etc.  25 

THE     ACTION     OF     THE     STATE    CONVENTIONS     AND      THE 
ORIGIN   OF   THE   FIRST   AMENDMENT. 

The  conventions  of  the  several  States,  which  were  held  in 
1787  and  1788  for  the  ratification  of  the  Federal  Constitu- 
tion, reflect  the  conflicting  sentiments  then  entertained  on 
the  question  of  religious  tests.  At  present  nobody  doubts 
the  wisdom  of  that  clause  in  the  Constitution  which  removes 
such  tests.  "  No  provisions  of  the  Constitution  of  the 
United  States  are  more  familiar  to  us,"  says  a  learned 
American  historian,'  "  and  more  clearly  express  the  uni- 
versal sentiment  of  the  American  people,  or  are  in  more 
perfect  harmony  with  the  historic  consciousness  of  the 
nation,  than  those  which  forbid  the  national  government  to 
establish  any  form  of  religion  or  to  prescribe  any  religious 
test  as  a  qualification  for  office  held  under  its  authority. 
Almost  every  other  general  principle  of  government  em- 
bodied in  that  instrument  has  been  discussed  and  argued 
about,  and  its  application  in  particular  cases  resisted  and 
questioned,  until  the  intention  of  those  who  framed  it  seems 
lost  in  the  Serbonian  bog  of  controversy ;  yet  no  one  has 
ever  denied  the  rightfulness  of  the  principle  of  religious  lib- 
erty laid  down  in  the  Constitution." 

But  before  the  adoption  of  that  instrument  there  was  a 
wide  difference  of  opinion  on  this,  as  well  as  on  other  articles. 
The  exclusion  of  religious  tests  from  qualification  for  public 
office  under  the  general  government  was  opposed  in  those 
States  which  required  such  tests,  under  the  apprehension 
that  without  them  the  federal  government  might  pass  into 
the  hands  of  Roman  Catholics,  Jews,  and  infidels.  Even  the 
Pope  of  Rome,  said  a  delegate  from  North  Carolina,  might 
become  President  of  the  United  States  !  On  the  other 
hand,  several  States,  while  adopting  the  Constitution,  pro- 
posed amendments  guaranteeing  religious  freedom  and  other 
fundamental  rights. 

The  opposition  to  the  abolition  of  religious  tests  was 
strongest  in   Massachusetts,  where  Congregationalism    was 

'  Dr.  Charles  Stille,  "  Religious  Tests  in  Provincial  Pennsylvania."  A 
paper  read  before  the  Historical  Society  of  Pennsylvania,   November  9,  1885. 


26  CluircJi  and  State  in  the  United  States. 

the  established  church.  Major  Lusk,  a  delegate  to  the 
convention  of  that  State,  "  shuddered  at  the  idea  that 
Romanists  and  pagans  might  be  introduced  into  office,  and 
that  Popery  and  the  Inquisition  may  be  established  in 
America.'  "  But  the  Rev.  Mr.  Backus,  in  answer  to  this  ob- 
jection, remarked  :  "  Nothing  is  more  evident,  both  in  reason 
and  the  Holy  Scriptures,  than  that  religion  is  ever  a  matter 
between  God  and  individuals;  and,  therefore,  no  man  or 
men  can  impose  any  religious  test  without  invading  the  es- 
sential prerogatives  of  our  Lord  Jesus  Christ.  .  .  .  Im- 
posing of  religious  tests  has  been  the  greatest  engine  of 
tyranny  in  the  world.  .  .  .  Some  serious  minds  discover 
a  concern  lest  if  all  religious  tests  should  be  excluded  the 
Congress  would  hereafter  establish  Popery  or  some  other 
tyrannical  way  of  worship.  But  it  is  most  certain  that  no 
such  way  of  worship  can  be  established  without  any  religious 
tests."  "  The  same  clergyman  spoke  strongly  against  slavery, 
which  "  grows  more  and  more  odious  in  the  world,"  and  ex- 
pressed the  hope  that,  though  it  was  not  struck  with  ap- 
oplexy by  the  proposed  Constitution,  it  would  die  with  con- 
sumption by  the  prohibition  of  the  importation  of  slaves 
after  a  certain  date  (i8o8).  The  Rev.  Mr.  Shute  was  equally 
pronounced  in  his  defence  of  the  clause.  "  To  establish  a 
religious  test,"  ^  he  said,"  as  a  qualification  for  offices  would 
be  attended  with  injurious  consequences  to  some  individuals, 
and  with  no  advantage  to  the  whole.  .  .  .  Unprincipled 
and  dishonest  men  will  not  hesitate  to  subscribe  to  anything. 
Honest  men  alone,  however  well  qualified  to  serve 
the  public,  would  be  excluded  by  the  test,  and  their  country 
be  deprived  of  the  benefit  of  their  abilities.  In  this  great 
and  extensive  empire  there  is,  and  will  be,  a  great  va- 
riety of  sentiments  in  religion  among  its  inhabitants.  .  .  . 
Whatever  answer  bigotry  may  suggest,  the  dictates  of  can- 
dor and  equity  will  be:  no  religious  tests.  .  .  .  I  believe 
that  there  are  worthy  characters  among  men  of  every  denom- 
ination— among  Quakers,  Baptists,  the  Church  of  England, 

1  Elliot's  "  Debates,"  vol.  II.  148.  '  Ibid.,  II.  14S  sq. 

^  Ibid.,  II.  118  sq. 


The  Action  of  the  State  Conventions.  27 

the  Papists,  and  even  among  those  who  have  no  other  guide  in 
the  way  of  virtue  and  heaven  than  the  dictates  of  natural  re- 
ligion. .  .  .  The  Apostle  Peter  tells  us  that  God  is  no 
respecter  of  persons,  but,  in  every  nation,  he  that  fcarcth 
him  and  worketh  righteousness  is  acceptable  to  him.  And  I 
know  of  no  reason  why  men  of  such  a  character,  in  a  com- 
munity of  whatever  denomination  in  religion,  cceteris paribus, 
with  other  suitable  qualifications,  should  not  be  acceptable 
to  the  people,  and  why  they  may  not  be  employed  by  them 
with  safety  and  advantage  in  the  important  offices  of  gov- 
ernment." The  Rev.  ]\Ir.  Payson  spoke  in  the  same  strain, 
and  insisted  that  "  human  tribunals  for  the  consciences  of 
men  are  impious  encroachments  upon  the  prerogatives  of 
God." '  It  is  very  evident  that  these  Congregational  min- 
isters of  the  gospel  represented  the  true  American  spirit  in 
the  convention,  rather  than  Major  Lusk  and  Colonel  Jones, 
who  favored  religious  tests.  The  Convention  of  Massa- 
chusetts ratified  the  Constitution,  February  7,  1788,  by 
a  majority  of  19  (187  to  168),  with  proposition  of  9 
alternatives  and  provisions  which,  however,  do  not  in- 
clude religious  liberty,  unless  it  be  implied  in  the  first 
proposition :  "  That  it  be  explicitly  understood  that  all 
powers  not  expressly  delegated  by  the  aforesaid  Con- 
stitution are  reserved  to  the  several  States  to  be  by  them 
exercised." 

<^  In  the  Convention  of  North  Carolina,  held  July,  1788,  the 
same  fear  was  expressed,  that,  without  some  religious  tests, 
Jews,  infidels,  and  Papists  might  get  into  offices  of  trust, 
but  Mr.  Iredell  said,  that  "  under  the  color  of  religious  tests 
the  utmost  cruelties  have  been  exercised,"  and  that  America 
has  set  an  example  "  of  moderation  and  general  religious 
liberty.  Happily  no  sect  here  is  superior  to  another.  As 
long  as  this  is  the  case,  we  shall  be  free  from  those  persecutions 
with  which  other  countries  have  been  torn."  Among  the 
twenty  amendments  proposed  by  North  Carolina  as  a  "  de- 
claration of  rights,"  and  put  on  record,  the  last  is  this,  which 
literally  agrees  with  one  proposed  by  Virginia  : 

'  Ibid.,  ii.  120. 


28  Church  and  State  in  the  United  States, 

"  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  manner  of 
discharging  it,  can  be  directed  only  by  reason  and  conviction,  not  by  force  or 
violence,  and,  therefore,  all  men  have  an  equal,  natural,  and  unalienable  right 
to  the  free  exercise  of  religion,  according  to  the  dictates  of  conscience  ;  and 
that  no  particular  religious  sect  or  society  ought  to  be  favored  or  established  by 
law  in  preference  to  others."  ' 

North  Carolina  did  not  ratify  the  Constitution  till  No- 
vember 21,  1789. 

In  Virginia  the  exclusion  of  religious  tests  was  regarded  by 
the  advanced  liberal  party  as  quite  insufficient,  and  a  more 
explicit  guarantee  against  the  establishment  of  a  religion 
was  demanded.  In  that  State  the  Church  of  England  had 
been  disestablished,  and  full  liberty  secured  to  all  forms  of 
belief,  by  an  act  of  October,  1785,  two  years  before  the 
framing  of  the  Federal  Constitution." 

This  act  was  brought  about  by  the  combined  influence 
of  the  dissenters  (Presbyterians,  Baptists,  Quakers,  etc.), 
who  formed  at  that  time  two  thirds  of  the  population,  and 
the  political  school  of  Jefferson,  who  was  of  Episcopalian 
descent,  but  had  early  imbibed  the  Voltaireian  philosophy  of 
toleration,  and  during  his  residence  in  Paris  (1784-1789)  had 
intimately  associated  with  the  leaders  of  French  infidelity. 
He  composed  the  Declaration  of  Independence  (1776),  but 
had  nothing  to  do  with  the  framing  of  the  Federal  Consti- 
tution (being  then  absent  in  France).  He  was  opposed  to 
centralization,  both  as  Secretary  of  State,  in  Washington's 
first  cabinet,  and,  with  more  moderation,  as  President.  He 
founded  the  Anti-Federalist  party  and  the  State  Rights  the- 
ory, which  afterwards  logically  developed  into  the  Nullifica- 

'  Elliot,  vol.  iv.  242,  244.     Comp.  p.  192,  and  iii.  659. 

"  That  act,  after  fully  setting  forth  strong  arguments  against  state-churchism 
and  intolerance,  declares:  ^^  Be  it  therefore  enacted  by  the  General  Assembly, 
that  no  man  shall  be  compelled  to  frequent  or  support  any  religious  worship, 
place,  or  ministry  whatsoever,  nor  shall  be  enforced,  restrained,  molested,  or 
burthened  in  his  body  or  goods,  nor  shall  otherwise  suffer  on  account  of  his 
religious  opinions  or  belief  ;  but  that  all  men  shall  be  free  to  profess,  and  by 
argument  to  maintain,  tlieir  opinions  in  matters  of  religion,  and  that  the  same 
shall  in  nowise  diminish,  enlarge,  or  affect  their  civil  capacities."  "Collec- 
tion of  the  Laws  of  Virginia  by  W.  W.  Hening,"  vol.  xii.  p.  84  (Richmond, 
1823).  Ten  years  before,  in  1776,  the  oppressive  acts  against  dissenters  had 
been  repealed. 


The  Action  of  the  State  Conventions.  29 

tion  theory  of  Calhoun,  and  the  Secession  theory  of  Jeffer- 
son Davis,  but  he  differed  from  his  southern  successors  by 
his  decided  opposition  to  the  institution  of  slavery.  He  was 
no  member  of  the  Convention  of  Richmond  in  1788,  but  his 
influence  was  thrown  against  the  adoption  of  the  Consti- 
tution without  "  a  declaration  of  rights  which  shall  stipulate 
freedom  of  religion,  freedom  of  the  press,  freedom  of  com- 
merce against  monopolies,  trial  by  juries  in  all  cases,  no 
suspensions  of  the  habeas  corpus,  no  standing  armies."  ' 
Patrick  Henry,  also,  who  was  a  member  of  that  Convention, 
violently  opposed  the  adoption  of  the  Constitution  without 
a  bill  of  rights.'^  On  the  guarantee  for  freedom  of  religion, 
all  parties  of  Virginia  were  agreed,  except  that  some  of  the 
leading  men,  including  Washington  ^and  Patrick  Henry, 
favored  the  taxing  of  the  people  for  the  support  of  some 
church  of  their  preference.  The  Convention,  therefore,  re- 
commended to  Congress,  among  other  amendments,  the 
following : 

'  See  his  leUer  to  A.  Donald,  dated  Paris,  Febr.  7,  1788,  in  "  The  Writings 
of  Th.  Jefferson  "  (N.  York,  1853),  vol.  ii.  355.  In  a  letter  to  the  Danbury 
Baptist  Association,  Jan.  i,  1802,  he  expressed  his  great  satisfaction  with  the 
First  Amendment.  "  Believing  with  you,"  he  says,  "that  religion  is  a  matter 
which  lies  solely  between  man  and  his  God,  that  he  owes  account  to  none 
other  for  his  faith  or  Iiis  worship,  that  the  legislative  powers  of  government 
reach  actions  only,  and  not  opinions,  I  contemplate  with  sovereign  reverence 
that  act  of  the  whole  American  people,  which  declared  that  their  legislature 
should  '  make  no  law,  respecting  an  establishment  of  religion  or  prohibiting  the 
free  exercise  thereof,'  thus  building  a  wall  of  separation  between  church  and 
state."  Vol.  viii.  113.  His  gives  his  views  on  religious  freedom  in  his"  Notes 
on  the  State  of  Virginia,"  17S7,  Ch.  17.  Comp.  Randall's  "  Life  of  Thomas 
Jefferson,"  vol.  iii.  553-558.  Jefferson  was  a  Unitarian,  but  he  generally  at- 
tended the  Episcopal  church,  carried  his  prayer-book,  and  joined  in  the  re- 
sponses. He  contributed  liberally  to  churches,  Bible  societies,  and  other  reli- 
gious objects.  Sec  Randall,  iii.  555.  He  concludes  his  first  inaugural,  March 
4,  1801,  with  the  prayer:  "May  that  infinite  Power  which  rules  the  destinies 
of  the  universe,  lead  our  councils  to  what  is  best,  and  give  them  a  favorable 
issue  for  our  peace  and  prosperity."  And  in  the  course  of  his  address  he 
alludes  to  our  "  benign  religion  "  and  the  "  overruling  Providence,"  as  the  best 
security  of  our  happiness  and  prosperity.  This  is  very  vague,  indeed,  but  there 
are  few  Christian  rulers  of  modern  Europe  who  go  even  so  far  in  their  official 
utterances. 

'  See  his  speeches  in  Elliot,  iii.  593  sijq. 


30  Church  and  State  in  the  United  States. 

"  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  manner  of 
discharging  it,  can  be  directed  only  by  reason  and  conviction,  not  by  force  or 
violence  ;  aad  therefore  all  men  have  an  equal,  natural,  and  unalienable  right 
to  the  free  exercise  of  religion,  according  to  the  dictates  of  conscience,  and  that 
no  particular  religious  sect  or  society  ought  to  be  favored  or  established  by  law 
in  preference  to  others."  ' 

This  amendment  is  substantially  a  repetition  of  article 
l6th  in  the  "  Declaration  of  Rights,"  which  was  prepared 
by  Thomas  Jefferson,  and  unanimously  adopted  by  the 
Legislature  of  Virginia,  June  I2,  1776  (several  weeks  before 
the  Declaration  of  Independence,  July  4,  1776),  and  reads 
as  follows  : 

"  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  manner 
of  discharging  it,  can  be  directed  only  by  reason  and  conviction,  not  by  force  or 
violence,  and  therefore  all  men  are  equally  entitled  to  the  free  exercise  of 
religion,  according  to  the  dictates  of  conscience  ;  and  that  it  is  the  mutual  duty 
of  all  to  practice  Christian  forbearance,  love,  and  charity,  towards  each  other."  - 

New  Hampshire  proposed  twelve  alterations,  the  eleventh 

of  which  is  : 

"  Congress  shall  make  no  laws  touching  religion,  or  to  infringe  the  rights  of 
conscience."  ^ 

The  Convention  of  New  York,  held  in  Poughkeepsie, 
June  17-July  26,  1788,  adopted  the  Constitution  after 
excited  debates,  in  which  Governor  Clinton,  Alexander 
Hamilton,  Robert  R.  Livingston,  John  Jay,  Melancthon 
Smith,  and  Mr.  Lansing  took  prominent  part,  with  a  major- 
ity of  only  three  (30  to  27),  and  with  sundry  recommenda- 
tions and  principles,  among  which  is  this  : 

"  That  the  people  have  an  equal,  natural,  and  unalienable  right  freely  and 
peaceably  to  exercise  their  religion  according  to  the  dictates  of  conscience  ; 
and  that  no  religious  sect  or  society  ought  to  be  favored  or  established  by  law 
in  preference  to  others."  ■* 

The  State  of  New  York  had  virtually  disestablished  the 
Episcopal  Church  in  1777,  one  year  after  the  Declaration  of 
Independence,  by  repealing,  in  its  constitution,  all  statutes 
and  acts  of  the  colony  which  "  might  be  construed  to  estab- 

1  Elliot,  iii.  659. 

^  Hening's  "Collection  of  the  Laws  of  Virginia,"  vol.  ix.  p.  ill.  The 
words  "are  equally  entitled,"  were  changed  into  "  have  an  equal,  natural,  and 
unalienable  right,"  and  the  same  phraseology  was  used  by  the  North  Carolina, 
New  York,  and  Rhode  Island  Conventions.  I  am  unable  to  trace  its  precise 
origin.  '  Elliot,  i.  326.  *  Elliot,  i.  328. 


Action  of  the  State  Conventions.  3 1 

lish  or  maintain  any  particular  denomination  of  Christians 
and  their  ministers  "  ;  and  it  ordained  that  "  the  free  exer- 
cise and  enjoyment  of  rehgious  profession  and  worship, 
without  discrimination  or  preference,  shall  forever  hereafter 
be  allowed  within  this  State  to  all  mankind."  ' 

Pennsylvania  ratified  the  Constitution  December  12,  1787, 
by  a  majority  of  fifteen,  but  the  dissenting  minority,  failing 
to  secure  a  new  national  convention,  issued  an  address  to 
their  constituents,  called  "  Reasons  of  Dissent,"  etc.,  in  which 
fourteen  amendments  were  proposed,  the  first  being  a  guar- 
antee of  religious  freedom  in  these  words : 

"  The  right  of  conscience  shall  be  held  inviolable,  and  neither  the  legislative, 
executive,  nor  judicial  powers  of  the  United  States  shall  have  authority  to  alter, 
abrogate,  or  infringe  any  part  of  the  constitutions  of  the  several  States,  which 
provide  for  the  preservation  of  liberty  in  matters  of  religion."  '^ 

Rhode  Island  was  the  last  to  ratify  the  Constitution,  May 
29,  1790,  and  then  only  with  a  prefatory  declaration  of 
eighteen  principles,  the  fourth  of  which  is  in  almost  verbal 
agreement  with  the  declaration  of  Virginia  as  follows  : 

"  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  manner 
of  discharging  it,  can  be  directed  only  by  reason  and  conviction,  and  not  by 
force  and  violence  ;  and  therefore  all  men  have  a  natural,  equal,  and  unaliena- 
ble right  to  the  exercise  of  religion  according  to  the  dictates  of  conscience  ;  and 
that  no  particular  religious  sect  or  society  ought  to  be  favored  or  established, 
by  law,  in  preference  to  others."  ' 

To  the  ratification  were  added  seventeen  amendments  as 
recommendations,  but  religious  liberty  is  not  included. 

The  First  Congress  of  the  United  States  met  under  the 
Constitution  March  4,  1789.  In  the  session  of  June  8th,  the 
House  of  Representatives,  on  motion  of  James  Madison,  of 
Virginia,  took  into  consideration  the  amendments  to  the 
Constitution  desired  by  several  States,  and  resolved  itself 
into  a  committee  of  the  whole.  After  much  useless  debate, 
Mr.  Madison  moved  the  appointment  of  a  select  committee 
to  report  proper  amendments,  and  supported  it  by  a  long 

'  See  Murray  Hoffman,  "  Ecclesiast.  Law  of  the  State  of  New  York."  N.  Y. 
1868,  p.  40. 

*"  The  Reasons  of  Dissent "  were  published,  Philadelphia,  Dec.  12,  17S7, 
and  reprinted  in  Carey's  "  American  Museum,"  vol.  ii.  No.  V.  pp.  536-553. 

^Elliot,  i.  334- 


32  CJiurch  and  State  in  the   United  States. 

and  strong  speech,  urging  as  a  reason  chiefly  the  duty  of 
Congress  to  remove  all  apprehensions  of  an  intention  to 
deprive  the  people  "  of  the  liberty  for  which  they  valiantly 
sought  and  honorably  bled."  "  I  believe,"  he  said,  "  that 
the  great  mass  of  the  people  who  opposed  the  Constitution 
disliked  it  because  it  did  not  contain  effectual  provisions 
against  encroachments  on  particular  rights,  and  those  safe- 
guards which  they  have  been  long  accustomed  to  have  inter- 
posed between  them  and  the  magistrate  who  exercises  the 
sovereign  power  ;  nor  ought  we  to  consider  them  safe,  while 
a  great  number  of  our  fellow-citizens  think  these  securities 
necessary."  He  then  proposed  nine  amendments,  and  among 
these  the  following,  which  bears  directly  on  our  subject  : 

"  Fourthly,  That  in  article  I.,  section  9,  between  clauses  3  and  4,  be  inserted 
these  clauses,  to  wit :  The  civil  rights  of  none  shall  be  abridged  on  account  of 
religious  belief  or  worship,  nor  shall  any  national  religion  be  established,  nor 
shall  the  full  and  equal  rights  of  conscience  be  in  any  manner,  or  on  any  pre- 
text, infringed." 

Under  the  same  head  Madison  mentioned  the  guarantees 
of  the  freedom  of  speech  and  the  press,  and  the  right  to 
petition,  which  are  included  in  the  First  Amendment  as  it 
now  stands. 

Much  opposition  was  made  to  such  amendments,  chiefly  on 
the  ground  that  they  were  unnecessary  in  a  free  republic.  In 
the  session  of  July  21st  a  select  committee  of  representatives 
of  the  eleven  States  which  had  adopted  the  Constitution, 
consisting  of  Messrs.  Vining,  Madison,  Baldwin,  Sherman, 
Burke,  Gillman  Cymer,  Benson,  Goodhue,  Boudinot,  and 
Gale,  was  appointed  "  to  take  the  subject  of  amendments 
to  the  Constitution  of  the  United  States  generally  into  their 
consideration,  and  to  report  thereupon  to  the  House," 

The  report  was  discussed  and  amended.  On  August  24, 
1789,  the  House  adopted  a  series  of  amendments  and  ordered 
the  clerk  to  send  them  to  the  Senate,  which  agreed  to  some, 
and  objected  to  others.  The  two  Houses  came  to  an  agree- 
ment on  the  25th  of  September,  1789.' 

'  The  authority  for  these  statements  on  the  proceedings  of  the  First  Congress 
bearing  on  our  subject,  see  in  the  "  Annals  of  Congress"  (ed.  by  Jos.  Gales), 
Washington,    1834,  vol.  i.  pp.  440  sqq.  ;  448  sqq.  ;  685-692  ;  699  ;  730  sqq.  ; 


Action  of  the  State  Conventions.  33 

Congress  accordingly  sent  twch^e  amendments  to  the 
Legislatures  of  the  several  States  for  ratification,  three  fourths 
being  ncccssay  for  the  purpose.'  The  first  two,  relating  to 
the  number  of  representatives  (Art.  I.),  and  to  compensa- 
tion for  services  of  the  senators  and  representatives  (Art. 
II.),  were  rejected  by  some,  the  other  ten  were  duly  ratified 
by  all  the  Legislatures  except  those  of  Massachusetts,  Con- 
necticut, and  Georgia,  which  made  no  returns,  and  by  silence 
gave  consent. ' 

796  sqq.  75S.  On  page  951  the  "Annals"  report:  "A  message  from  the 
Senate  informed  the  House  that  the  Senate  agree  to  the  amendment  pro- 
posed by  this  House  to  tlieir  amendments  to  the  several  articles  of  amendment 
to  the  Constitution  of  the  United  States."  In  the  same  session  of  September 
25th,  Mr.  Boudinot  moved  a  resolution  to  request  the  President  to  recommend 
"a  day  of  public  thanksgiving  and  prayer  for  the  many  signal  favors  of  Al- 
mighty God,  especially  by  affording  the  people  an  opportunity  peaceably  to 
establish  a  constitution  of  government  for  their  safety  and  happiness."  The 
resolution  was  objected  to  by  Tucker,  but  supported  byShennan,  and  adopted. 

'  Elliot's  "  Debates,"  i.  338  and  339.     The  preamble  states  : 

"  The  conventions  of  a  number  of  States  having,  at  the  time  of  their  adopt- 
ing the  Constitution,  expressed  a  desire,  in  order  to  prevent  misconstruction  cr 
abuse  of  its  powers,  that  further  declaratory  and  restrictive  clauses  should  be 
added  ;  and  as  e.xtcnding  the  ground  of  public  confidence  in  the  government 
will  be>t  insure  the  beneficent  ends  of  its  institution  ; — 

"  Resolved,  by  the  Senate  and  Ilotise  of  Representatives  of  the  United  States 
of  America,  in  Congress  assembled,  two  thirds  of  both  Houses  concurring,  that 
the  following  articles  be  proposed  to  the  legislatures  of  the  sevcr.1l  States,  as 
amendments  to  the  Constitution  of  the  United  States,  all  or  any  of  which  arti- 
cles, when  ratified  by  three  fourths  of  the  said  legislatures,  to  be  valid,  to  all 
intents  and  purposes,  a>  part  of  said  Constitution,  namely, — " 

Then  follow  the  twelve  articles.  The  document  is  signed  by  Frederick 
AUGUSTi'S  Muhlenberg,  Speaker  of  the  House  of  Representatives,  and  by 
JOHV  Adams,  "Vice-President  of  the  United  States  and  President  of  the  Senate. 

'  In  the  "  Annals  of  Congress,"  ii.  2033,  are  recorded  the  ratifications  of  New 
Hampshire  Qan.  25,  1790,  all  except  Art.  II.)  ;  New  York  (Feb.  24,  1790,  ex- 
cept Arts.  I.  and  II.)  ;  Pennsylvania  (March  11,  1790,  except  Arts.  I.  and 
II.)  ;  Delaware,  Jan.  28,  1790,  all  but  Art.  I.)  ;  Maryland,  Dec.  19,  1789,  all; 
South  Carolina  (Jan.  19,  1790,  all)  ;  North  Carolina  (Dec.  22,  1789,  all)  ; 
Rhode  Island  (June,  1790,  .except  Art.  II.)  ;  New  Jersey  (Nov.  20,  all 
but  Art.  II. ).  In  the  Annals  of  the  Second  Congress,  Oct.  24,  1791  to  Mar. 
2.  1793  (Washington,  1849),  pp.  54  and  75,  is  reported  the  ratification  of  Vir- 
ginia (Dec.  5,  1791,  except  Art.  I.),  and  of  Vermont  (Nov.  3,  1791,  all). 
There  is  no  record  on  the  journals  of  Congress  thr.t  the  legislatures  of  Connec- 
ticut, Massachusetts,  and  Georgia  ratified  the  aincnchnents.  They  were  de- 
clared in  force  by  the  Proclamation  of  Washington  December  15,  1791. 


34  Church  and  State  in  the  United  States. 

Thus  the  first  ten  of  the  amendments  became  part  and 
parcel  of  the  Constitution  in  1791.  The  first  of  them  (which 
was  originally  the  third)  is  the  guarantee  of  religious 
liberty. 

From  these  facts  it  appears  that  the  credit  of  the  First 
Amendment  is  due  to  the  First  Congress,  which  proposed  it, 
and  to  the  conventions  of  the  States  of  New  York,  Vir- 
ginia, North  Carolina,  Rhode  Island,  New  Hampshire,  and 
the  minority  of  Pennsylvania,  all  of  which  suggested  it, 
directly  or  indirectly,  in  substantially  the  same  language. 

As  to  individuals,  James  Madison,  of  Virginia,  who  be- 
came the  fourth  President  of  the  United  States,  has  the 
honor  of  being  the  chief  advocate  of  this  amendment  in  Con- 
gress. It  was  his  conviction  that  religion  was  the  gainer  by 
its  separation  from  politics.  We  have  an  interesting  testi- 
mony to  this  effect  from  his  pen  in  a  letter  to  Edward 
Livingston,  dated  Montpellier,  July  10,  1822.  "  It  was  the 
belief  of  all  sects  at  one  time,"  he  says,  "  that  the  establish- 
ment of  religion  by  law  was  right  and  necessary  ;  that  the 
true  religion  ought  to  be  established  in  exclusion  of  every 
other  ;  and  that  the  only  question  to  be  decided  was,  which 
was  the  true  religion.  The  example  of  Holland  proved  that 
a  toleration  of  sects  dissenting  from  the  established  sect  was 
safe,  and  even  useful.  The  example  of  the  colonies,  now 
States,  which  rejected  religious  establishments  altogether, 
proved  that  all  sects  might  be  safely  and  advantageously 
put  on  a  footing  of  equal  and  entire  freedom.  .  .  .  It  is 
impossible  to  deny  that  in  Virginia  religion  prevails  with 
more  zeal  and  a  more  exemplary  priesthood  than  it  ever  did 
when  established  and  patronized  by  public  authority.  We 
are  teaching  the  world  the  great  truth  that  governments 
do  better  without  kings  and  nobles  than  with  them.  The 
merit  will  be  doubled  by  the  other  lesson  :  that  religion 
flourishes  in  greater  purity  without  than  with  the  aid  of 
■*r    government."  ' 

'  "Letters  and  Other  Writings  of  Jan:ies  Madison,  Fourth  President  of  the 
United  States,"  in  4  vols.,  published  by  order  of  Congress,  Philadelphia,  1867, 
vol.  iii.  275,  276. 


Decision  of  iJic  United  States  Supreme  Court.  35 

LIMITATION  OF  RELIGIOUS  LIBERTY— DECISION  OF  THE 
UNITED  STATES  SUPREME  COURT  ON  MORMON  POLYG- 
AMY. 

The  Constitution  does  not  define  "  religion,"  nor  limit 
"  the  free  exercise  thereof."  But  "  religion  "  must,  at  all 
events,  include  all  branches  of  the  Christian  Church  which 
then  existed  in  the  various  States,  with  their  creeds,  forms  of 
government,  worship,  and  discipline.  They  are  all  excluded 
from  becoming  a  state-religion,  but  all  can  practise  and 
enjoy  "  free  exercise."  This  is  much  more  than  freedom  of 
religious  opinions ;  for  this  exists  everywhere,  even  under 
the  most  despotic  governments,  and  is  beyond  the  reach  of 
law,  which  deals  only  with  overt  actions.  Freedom  of  exer- 
cise includes  public  worship,  acts  of  discipline,  and  every 
legitimate  manifestation  of  religion. 

The  spirit  and  disposition  of  our  government  allow  the 
widest  latitude  to  this  free  exercise  that  is  at  all  consistent 
with  public  safety.  Hence  even  irreligion  and  infidelity, 
have  free  play  and  scatter  their  poison  wide  and  far  by  word 
and  pen.  The  prevailing  sentiment  is,  that  error  may  safely 
be  tolerated  where  truth  is  free  to  combat  it.  Truth  is 
mighty  and  must  prevail  in  the  end..  Its  triumph  is  all  the 
more  sure  and  lasting  if  it  is  brought  about  by  its  owa 
merits,  unaided  by  material  force. 

But  there  must  be  some  boundary  to  religious,  as  to  alt  (  ^^ 
other  liberty,  when  it  assumes  an  organized  shape  or  mani-  '" 
fests  itself  in  public  acts.  Liberty  is  not  lawlessness  and 
licentiousness.  No  man  has  the  liberty  to  do  wrong,  or  to- 
injure  his  neighbor,  or  to  endanger  the  public  peace  and 
welfare.  Liberty,  in  the  nature  of  the  case,  is  limited  by 
the  supreme  law  of  self-preservation,  which  inheres  in  a 
commonwealth  as  well  as  in  an  individual  ;  and  by  the 
golden  rule  of  loving  our  neighbor  as  ourselves.  My  neigh- 
bor's liberty  is  as  sacred  as  mine,  and  I  dare  not  encroach 
upon  it.  Religious  liberty  may  be  abused  as  well  as  the 
liberty  of  speech  and  of  the  press,  or  any  other  liberty  ;  and 
all  abuses  are  punishable  by  law  if  they  violate  the  rights  of 
others.     A  religion  whicli   injures  public  morals  and  enjoins 


36  CJiiircJi  and  State  in  the  United  States. 

criminal  practices  is  a  public  nuisance,  and  must  be  treated 
as  such. 

So  far  religious  liberty  in  America  has  moved  within  the 
bounds  of  Christian  civilization  and  public  morality,  and  it 
is  not  likely  to  transgress  those  bounds. 

The  first  and  so  far  the  only  case  in  which  the  government 
was  forced  to  define  the  limits  of  religious  liberty  was  the 
case  of  Mormon  polygamy  in  Utah,  which  is  sanctioned  by 
the  Mormon  religion,  but  which  is  utterly  opposed  to  West- 
ern, as  distinct  from  Oriental,  civilization.  The  Congress  of 
the  United  States  prohibited  polygamy  by  law  (1862).' 
The  Supreme  Court  sustained  the  prohibition  as  constitu- 
tional and  valid,  and  within  the  legislative  power  of  Con- 
gress which  has  exclusive  control  over  the  Territories.  In 
the  decision,  delivered  October,  1878,  Chief-Justice  Morri- 
son R.  Waite  thus  defines  the  bounds  of  the  religious  lib- 
erty guaranteed  by  the  Constitution  :  ^ 

"  Laws  are  made  for  the  government  of  actions,  and  while 
they  cannot  interfere  with  mere  religious  belief  and  opinions, 
they  may  with  practices.  Suppose  one  believed  that  human 
sacrifices  were  a  necessary  part   of  religious  worship,  would 

'  Section  5352  of  the  Revised  Statutes  :  "  Every  person  having  a  husband  or 
vifife  living,  who  marries  another,  whether  married  or  single,  in  a  Territory  or 
other  place  over  which  the  United  States  have  exclusive  jurisdiction,  is  guilty 
of  bigamy,  and  shall  be  punished  by  a  fine  of  not  more  than  $500,  and  by  im- 
prisonment for  a  term  of  not  more  than  five  years." 

^  Reynolds  vs.  the  United  States,  vol.  98,  U.  S.  Supreme  Court  Reports,  p. 
166  sqq.  The  plaintiff,  George  Reynolds,  was  charged  with  bigamy,  and 
"  proved  that  at  the  time  of  his  alleged  second  marriage  he  was  a  member  of 
the  Church  of  Jesus  Christ  of  Latter-Day  Saints,  commonly  called  the  Mormon 
Church,  and  a  believer  in  its  doctrines  ;  that  it  was  an  accepted  doctrine  of 
that  church,  that  it  was  the  duty  of  male  members  of  said  church,  circumstances 
permitting,  to  practise  polygamy  ;  .  .  .  that  this  duty  was  enjoined  by 
different  books  which  the  members  of  said  church  believed  to  be  of  divine 
origin,  and  among  others  the  Holy  Bible,  and  also  that  the  members  of  the 
church  believed  that  the  practice  of  polygamy  was  directly  enjoined  upon  the 
male  members  thereof  by  the  Almighty  God,  in  a  revelation  to  Joseph  Smith, 
the  founder  and  prophet  of  said  church  ;  that  the  failing  or  refusing  to  practise 
polygamy  by  such  male  members  of  said  church,  when  circumstances  would 
admit,  would  be  punished,  and  that  the  penalty  for  such  failure  and  refusal 
•would  be  damnation  in  the  life  to  come."    (P.  161.) 


Decision  of  the  United  States  Supreme  Court.  37 

it  be  seriously  contended  that  the  civil  government  under 
which  he  lived  could  not  interfere  to  prevent  a  sacrifice  ?  Or 
if  a  wife  religiously  believed  it  was  her  duty  to  burn  herself 
upon  the  funeral  pile  of  her  dead  husband,  would  it  be  be- 
yond the  power  of  the  civil  government  to  prevent  her 
carrying  her  belief  into  practice  ? 

"So  here,  as  a  law  of  the  organization  of  society  under  the 
exclusive  dominion  of  the  United  States,  it  is  provided  that 
plural  marriages  shall  not  be  allowed.  Can  a  man  exercise 
his  practices  to  the  contrary  because  of  his  religious  belief  ?  ' 
To  permit  this  would  be  to  make  the  professed  doctrines.! 
of  religious  belief  superior  to  the  law  of  the  land,  and  in 
effect  to  permit  every  citizen  to  become  a  law  unto  himself. 
Government  could  exist  only  in  name  under  such  circum- 
stances." 

This  decision  is  of  the  greatest  importance.  It  would 
strictly  exclude  from  toleration  also  the  public  exercise  of 
Mohammedanism  which  sanctions  polygamy,  and  of  such 
heathen  religions  as  sanction  human  sacrifices. 

The  popular  hostility  to  the  Chinese  in  California,  and  the 
congressional  restriction  of  Chinese  immigration,  are  partly 
due  to  American  intolerance  of  the  heathen  customs  and 
practices  of  that  remarkable  people,  who,  by  their  industry 
and  skill,  have  largely  contributed  to  the  development  of  the 
material  wealth  of  the  Pacific  States,  and  deserve  a  better 
treatment  than  they  have  received. 

How  far  the  United  States  government  may  go  hereafter 
in  the  limitations  of  religious  liberty  depends  upon  the 
course  of  public  opinion,  which  frames  and  interprets  the 
laws  in  a  free  country. 

The  constitutions  of  the  individual  States,  which  guarantee 
religious  liberty,  generally  guard  it  against  abuse,  and  ex- 
pressly declare  that  "  the  liberty  of  conscience  hereby 
secured  shall  not  be  so  construed  as  to  excuse  acts  of  licen- 
tiousness, or  justify  practices  inconsistent  with  the  peace 
and  safety  of  the  State."  ' 

'  So  the  constitutions  of  New  York,  Illinois,  California,  and  other  States* 


3$  Church  and  State  in  the  United  States. 

THE   CHARGE   OF   POLITICAL  ATHEISM. 

The  colonial  charters,  the  Declaration  of  Independence, 
and  most  of  the  State  constitutions  recognize,  more  or  less 
explicitly,  the  great  truth  of  an  all-ruling  Providence  in  the 
origin  and  history  of  nations.  But  the  Constitution  of  the 
United  States  omits  the  mention  even  of  the  name  of  God.* 

This  was  a  sin  of  omission,  if  sin  at  all,  but  not  of  com- 
mission, or  intentional  slight.  Washington,  in  his  reply  to 
a  Christian  address  from  Massachusetts  and  New  Hamp- 
shire after  his  inauguration,  ascribes  the  absence  of  any 
regulation  respecting  religion  to  the  consideration  of  the 
framers  that  "  this  important  object  is  more  properly  com- 
mitted to  the   guidance    of  the   ministers   of  the  gospel."' 

The  omission  or  inadvertency  has  given  rise  to  the  charge 
of  political  atheism  against  the  Constitution. 

During  the  civil  war,  when  the  religious  sensibilities  of  the 
nation  were  excited  in  their  inmost  depths,  and  the  fate  of 
the  Union  was  trembling  in  the  balance,  a  "  National  Asso- 
ciation to  secure  certain  religious  amendments  to  the  Constitu- 
tion "  was  formed  under  the  presidency  of  Justice  William 
Strong,  of  the  United  States  Supreme  Court,  for  the  pur- 
pose of  carrying  through  Congress  such  an  alteration  in  the 
preamble  as  would  recognize  the  national  faith  in  God  and 
in  Christ.  The  amendment  is  as  follows,  the  proposed  in- 
sertions being  included  in  brackets  : 

"We,  the  people  of  the  United  States  [humbly  acknowledging  Almighty 
God  as  the  source  of  all  authority  and  power  in  civil  government,  the  Lord 
Jesus  Christ  as  the  Ruler  of  all  nations,  and  his  revealed  will  as  the  supreme 
law  of  the  land,  in  order  to  constitute  a  Christian  government,  and]  in  order 

•  So  did  also  the  Articles  of  Confederation  of  July  24,  177S,  except  in  the 
words  of  the  Ratification  :  "  Whereas  it  has  pleased  the  Great  Governor  of  the 
world,"  etc. 

*  B.  F.  Morris,  "  Christian  Life  and  Character  of  the  Civil  Institutions  of 
the  United  States"  (Philadelphia,  1864),  p.  248,  reports  a  mythical  story  of 
Alexander  Hamilton,  that  after  the  adjournment  of  the  Convention  he  was 
asked  the  reason  of  the  omission  by  Rev.  Dr.  Miller,  of  Princeton,  and  re- 
plied :  "  I  declare  we  forgot  it."  But  Dr.  Miller  was  not  called  to  Princeton 
till  1813,  nine  years  after  Hamilton's  death.  Morris  gives  no  authority  for  his 
statement,  and  introduces  it  simply  by  a  vague  "  it  is  said." 


The  Charge  of  Political  Atheism.  39 

to  form  a  more  perfect  union,  establish  justice,  ensure  domestic  tranquility, 
provide  for  the  common  defence,  promote  the  general  welfare,  and  secure  the  [in- 
alienable rights  and]  blessings  of  [life],  liberty,  [and  the  pursuit  of  happiness] 
to  ourselves  and  our  posterity  [and  all  tlie  inhabitants  of  the  land],  do  ordain 
and  establish  this  Constitution  for  the  United  States  of  America."  ' 

These  additions  in  the  preamble,  or  enacting  clause,  to  be 
operative,  would  require  a  special  provision  in  the  Constitu- 
tion itself,  giving  Congress  the  power,  by  appropriate  legisla- 
tion, to  gain  the  proposed  end  of  establishing  "a  Christian 
government,"  and  to  forbid,  under  penalties,  the  public  ex- 
ercise of  non-Christian  religions.  This,  again,  would  require 
an  alteration  or  express  limitation  of  the  First  Amendment 
to  the  various  forms  of  Christianity.  There  is  no  prospect 
that  such  an  amendment  can  ever  command  a  majority  in 
Congress  and  the  Legislatures  of  the  States.  The  best  chance 
was  passed  when  the  amendments  suggested  by  the  war  and 
the  emancipation  of  the  slaves  were  enacted.  The  Consti- 
tution of  the  Confederate  States,  framed  at  Montgomery, 
Alabama,  during  the  civil  war  (March  ii,  1861),  actually  did 
insert  Almighty  God  in  the  preamble,  but  that  constitution 
died  with  the  Confederacy  in  1865.  I  The  name  of  God  did 
npt  make  it  more  pious  or  justifiable.'  \   '^'T«»rU-ti  / 

Our  chief  objection  to  such  an  amendment,  besides  its 
impracticability,  is  that  it  rests  on  a  false  assumption,  and 
casts  an  unjust  reflection  upon  the  original  document,  as  if 
it   were  hostile  to  religion.     But  it  is  neither  hostile  nor 

'  See  "  Proceedings  of  the  National  Convention  to  secure  the  Religious 
Amendment  to  the  Constitution  of  the  U.  S.  held  at  Cincinnati,  Jan.  31  and 
Feb.  I,  1872."  Philadelphia,  1872.  Another  national  convention  was  held  in 
New  York,  February  1S73.  Compare,  also,  the  previous  and  subsequent  pub- 
lications of  that  Association,  and  their  semi-monthly  journal,  "  The  Christian 
Statesman,"  Philadelphia. 

*  The  Confederate  Constitution  follows  the  Federal  Constitution  very  closely, 
but  provides  for  the  theory  of  State  Rights  and  fur  tlie  protection  of  the  inslitu- 
tion  of  slavery,  which  caused  the  civil  war.  The  preamble  reads  as  follows 
(with  the  characteristic  words  in  italics)  :  "We,  the  people  of  the  Confiderate 
[instead  of  United^  States,  each  State  acting  in  its  sovereign  and  independent 
character,  in  order  to  form  a  permanent  federal  government  [instead  of  a  more 
perfect  union],  establish  justice,  insure  domestic  tran(juillity,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  poster ily — invoking  the  fivor  and 
guidance  of  Almighty   Cod — ordain  and  establish  this  Constitution  of  the  Ccn- 


40  Church  and  State  in  the  United  States. 

friendly  to  any  religion  ;  it  is  simply  silent  on  the  subject,  as 
lying  beyond  the  jurisdiction  of  the  general  government. 
The  absence  of  the  names  of  God  and  Christ,  in  a  purely 
political  and  legal  document,  no  more  proves  denial  ol 
irreverence  tlian  the  absence  of  those  names  in  a  mathemati- 
cal treatise,  or  the  statutes  of  a  bank  or  railroad  corporation. 
The  title  "  Holiness"  does  not  make  the  Pope  of  Rome  any 
holier  than  he  is,  and  it  makes  the  contradiction  only  more 
glaring  in  such  characters  as  Alexander  VI.  The  book  of 
Esther  and  the  Song  of  Solomon  are  undoubtedly  produc- 
tions of  devout  worshippers  of  Jehovah  ;  and  yet  the  name  of 
God  does  not  occur  once  in  them. 

We  may  go  further  and  say  that  the  Constitution  not  only 
contains  nothing  which  is  irreligious  or  unchristian,  but  is 
Christian  in  substance,  though  not  in  form.  It  is  per- 
vaded by  the  spirit  of  justice  and  humanity,  which  are 
Christian.  The  First  Amendment  could  not  have  origi- 
nated in  any  pagan  or  Mohammedan  country,  but  presup- 
poses Christian  civilization  and  culture.  Christianity  alone 
has  taught  men  to  respect  the  sacredness  of  the  human 
personality  as  made  in  the  image  of  God  and  redeemed  by 
Christ,  and  to  protect  its  rights  and  privileges,  including  the 
freedom  of  worship,  against  the  encroachments  of  the  tem- 
poral power  and  the  absolutism  of  the  state. 

The  Constitution,  moreover,  in  recognizing  and  requiring 
an  official  oath  from  the  President  and  all  legislative,  execu- 
tive, and  judicial  officers,  both  of  the  United  States  and  of 
the  several  States,  recognizes  the  Supreme  Being,  to  whom 
the  oath  is  a  solemn  appeal.  In  exempting  Sunday  from 
the  working  days  of  the  President  for  signing  a  bill  of  Con- 
gress, the  Constitution  honors  the  claims  of  the  weekly  day 
of  rest  and  the  habits  of  a  Sunday-keeping  nation  ;  and  in 

federate  [for  United'\  States  of  America."  Jefferson  Davis,  in  discussing  the 
alleged  improvements  of  the  Confederate  Constitution,  does  not  deem  this 
religious  clause  worth  mentioning.  See  his  "The  Rise  and  Fall  of  the  Con- 
federate Government  "  (New  York,  Appleton  &  Co.,  1881),  vol.  i.  p.  259.  In 
appendix  K.  (pp.  648  sqq.),  he  gives  the  text  of  both  Constitutions  in  parallel 
columns.  The  Confederate  Constitution  retains  the  third  clause  of  Art  VI.  and 
transfers  the  First  Amendment  to  section  g  of  Article  I. 


The  Charge  of  Political  Atheism.  4 1 

the  subscription,  by  the  words  "  in  the  year  of  our  Lord,"  it 
assents  to  that  chronology  which  imphes  that  Jesus  Christ 
is  the  turning-point  of  history  and  the  beginning  of  a  new 
order  of  society. 

And,  finally,  the  framers  of  the  Constitution  were,  without 
exception,  believers  in  God  and  in  future  rewards  and  pun- 
ishments, from  the  presiding  ofificer.  General  Washington, 
who  was  a  communicant  member  of  the  Episcopal  Church, 
down  to  the  least  orthodox,  Dr.  Benjamin  Franklin,  who 
was  affected  by  the  spirit  of  English  deism  and  French 
infidelity,  but  retained  a  certain  reverence  for  the  religion 
of  his  Puritan  ancestors.  All  recognized  the  hand  of  Divine 
Providence  in  leading  them  safely  through  the  war  of  inde- 
pendence. Dr.  Franklin,  in  an  eloquent  and  highly  credita- 
ble speech,  proposed  the  employment  of  a  chaplain  in  the 
Convention,  who  should  invoke  the  wisdom  and  blessing  of 
God  upon  the  responsible  work  of  framing  laws  for  a  new 
nation.' 

The  history  of  the  general  government  sustains  our  in- 
terpretation. The  only  example  of  an  apparent  hostility  to 
Christianity  is  the  treaty  with  Tripoli,  November  4,  1796,  in 
which  it  is  said — perhaps  unguardedly  and  unnecessarily — * 
that  the  government  of  the  United  States  is  "  not  founded 
on  the  Christian  religion,"  and  has  no  enmity  against  the  re- 
ligion of  a  Mohammedan  nation.'     But  this  treaty  was  signed 

'  See  Document  III.  It  is  noteworthy  that  President  Cleveland  incorporated 
this  address  of  Franklin  in  his  eulogy  of  the  Constitution  at  the  Centennial 
celebration  in  Philadelphia,  Sept.  17,  18S7. 

'  "  As  the  government  of  the  United  States  of  America  is  not  in  any  sense 
founded  on  the  Christian  religion  ;  as  it  has  in  itself  no  character  of  enmity 
against  the  laws,  religion,  or  tranquillity  of  Mussclmcn  ;  and  as  the  said  States 
never  have  entered  into  any  war  or  act  of  hostility  against  any  Mahometan  na- 
tion, it  is  declared  by  the  parties,  that  no  pretext  arising  from  religious  opin- 
ions shall  ever  produce  an  interruption  of  the  harmony  existing  between  the 
two  countries."  Article  XI.  of  Treaty  with  Tripoli,  signed  and  scaled  at 
Tripoli  Nov.  4,  1796,  and  at  Algiers,  Jan.  3,  1797,  by  Hassan  Bashau  (Dey 
of  Algiers)  and  Joel  Barlow  (Consul-Gen.  of  the  U.  S.).  See  "  Treaties  and 
Conventions  conducted  between  the  U.  S.  and  other  Powers,"  Washington, 
1873,  p.  838.  I  learn  from  Dr.  Francis  Wharton  that  the  treaty  was  framed 
by  an  ex-Congregational  clergyman.  With  this  treaty  should  be  "compared 
tlie  treaties  with  Turkey  wliich  protest   the  rights  of  American   Missionaries. 


42  Church  and  State  in  the  United  States. 

by  Washington,  who  could  not  mean  thereby  to  slight  the 
rehgion  he  himself  professed.  It  simply  means  that  the 
United  States  is  founded,  like  all  civil  governments,  in  the 
law  of  nature,  and  not  hostile  to  any  religion.  Man,  as 
Aristotle  says,  is  by  nature  a  political  animal.'  Civil  gov- 
ernment belongs  to  the  kingdom  of  the  Father,  not  of  the 
Son.  Paul  recognized  the  Roman  Empire  under  Nero  as 
founded  by  God,  and  that  empire  persecuted  the  Christian 
religion  for  nearly  three  hundred  years.  The  modern  Ger- 
man Empire  and  the  French  Republic  arose,  like  the  United 
States,  from  purely  secular  motives,  but  are  not  on  that 
account  irreligious  or  anti  -  Christian.  The  Constitution 
{Verfassungstirkundc)  of  the  German  Empire  proclaimed  by 
the  Emperor  William,  April  i6,  1861,  has  in  its  seventy- 
eight  articles  not  a  single  allusion  to  religion,  except  in  the 
title  of  the  Emperor  von  Gottcs  Gnadcn,  and  might  with  much 
more  justice  be  declared  an  atheistic  document  than  the  Con- 
stitution of  the  United  States. 

It  is  easy  to  make  a  plausible  logical  argument  in  favor  of 
the  proposition  that  the  state  cannot  be  neutral,  that  no-re- 
ligion is  irreligion,  and  that  non-Christian  is  anti-Christian. 
But  facts  disprove  the  logic.  The  world  is  full  of  happy  and 
unhappy  inconsistencies.  Christ  says,  indeed,  "  Who  is  not 
for  me  is  against  me,"  but  he  says  also,  with  the  same  right, 
"Who  is  not  against  me  is  for  me."  It  is  the  latter,  and  not 
the  former  truth  which  applies  to  the  American  state,  as  is 
manifest  from  its  history  down  to  the  present  time.  A  mere 
verbal  recognition  of  God  and  Christ  might  be  construed  as 
an  empty  patronizing  formality.  Having  the  substance,  we 
may  dispense  with  the  shadow,  which  might  cast  suspicion 
upon  the  reality. 

See  the  instruction  of  Secretary  Bayard  to  Straus.  April  20,  1887,  in  which  he 
says  :  "  It  is  with  peculiar  satisfaction  that  the  department  learns  that,  in 
part  through  the  instrumentality  of  Mr.  Pendleton  King  as  charge  d'affaires, 
an  arrangement  has  been  effected  with  the  Turkish  authorities  by  which  the 
[American]  missions  are  enabled  to  pursue,  as  heretofore,  their  meritorious, 
unselfish,  and  beneficent  work  among  Turks  in  Turkey." — Appendix  to  vol.  iii. 
of  "Digest  of  International  Law,"  by  Francis  Wharton,  LL.D.,  Washing- 
ton, 18S7,  p.  864. 

*  dv^pcoTtoi  (pvdsi  TtoXiziHov  (staatlich)  ^c^ov.     "  Polit."  Bk  I.  ch.  2. 


The  Infidel  Program.  43 

Our  Constitution,  as  all  free  government,  is  based  upon 
popular  sovereignty.  This  is  a  fact  which  no  one  can  deny. 
But  this  fact  by  no  means  excludes  the  higher  fact  that  all 
government  and  power  on  earth  are  of  divine  origin,  depend- 
ent on  God's  will  and  responsible  to  him  (Rom.  xiii.,  i).  God 
can  manifest  his  will  through  the  voice  of  the  people  fully  as 
well  as  through  the  election  of  princes  or  nobles,  or  through 
the  accident  of  birth.  In  the  ancient  church  even  bishops 
(like  Cyprian,  Ambrose,  Augustin)  and  popes  (like  Gregory 
the  Great)  were  chosen  by  the  people,  and  the  vox  populi 
was  accepted  as  the  vox  Dei.  When  these  come  in  conflict, 
we  must  obey  God  rather  than  man  (Acts  iv.,  29).  All  power, 
parental,  civil,  and  ecclesiastical,  is  liable  to  abuse  in  the 
hands  of  sinful  men,  and  if  government  commands  us  to  act 
against  conscience  and  right,  disobedience,  and,  if  necessary, 
revolution,  becomes  a  necessity  and  a  duty. 

THE   INFIDEL   PROGRAM. 

A  direct  opposition  to  the  efforts  of  the  "  National  Asso- 
ciation to  Secure  a  Religious  Amendment  to  the  Constitu- 
tion of  the  United  States  "  is  an  attempt  of  the  "  Liberal 
League  "  to  expunge  from  it  every  trace  of  Christianity. 
The  former  aims  to  christianize  the  Constitution  and  to 
nationalize  Christianity  ;  the  latter  aims  to  heathenize  the 
Constitution  and  to  denationalize  Christianity. 

The  program  of  the  "  Liberal  League,"  as  published  by 
Francis  E.  Abbot,  in  their  organ,  TJie  Index,  January  4, 
1873,  and  separately,  is  as  follows: 

"  The  Demands  of  Liberalisnc. 

"I.  We  demand  that  churches  and  other  ecclesiastical  property  shall  no 
longer  be  exempted  from  just  taxation. 

"  2.  We  demand  that  the  employment  of  chaplains  in  Congress,  in  State 
Legislatures,  in  the  navy  and  militia,  and  in  prisons,  asylums,  and  all  other 
institutions  supported  by  public  money,  shall  be  discontinued. 

"  3.  We  demand  that  all  public  appropriations  for  sectarian,  educational,  and 
charitable  institutions  shall  cease. 

"  4.  We  demand  that  all  religious  services  now  sustained  by  the  government 
shall  be  abolished  ;  and  especially  that  the  use  of  the  Bible  in  the  public 
schools,  whether  ostensibly  as  a  text-book,  or  avowedly  as  a  book  of  religious 
worship,  shall  be  prohibited. 


44  Church  and  State  in  the  United  States. 

"  5.  We  demand  that  the  appointment,  by  the  President  of  the  United  States 
or  by  the  Governors  of  the  various  States,  of  all  religious  festivals  and  feasts 
shall  wholly  cease. 

"  6.  We  demand  that  the  judicial  oath  in  the  courts,  and  in  all  other  depart- 
ments of  the  government,  shall  be  abolished,  and  that  simple  affirmation 
under  pains  and  penalties  of  perjury  shall  be  established  in  its  stead. 

"7.  We  demand  that  all  laws,  directly  or  indirectly,  enforcing  the  observance 
of  Sunday  as  the  Sabbath  shall  be  repealed. 

"8.  We  demand  that  all  laws  looking  to  the  enforcement  of  'Christian' 
morality  shall  be  abrogated,  and  that  all  laws  shall  be  conformed  to  the 
requirements  of  natural  morality,  equal  rights,  and  impartial  liberty. 

"9.  We  demand  that  not  only  in  the  Constitutions  of  the  United  States  and 
of  the  several  States,  but  also  in  the  practical  administration  of  the  same,  no 
privilege  or  advantage  shall  be  conceded  to  Christianity  or  any  other  special 
religion  ;  that  our  entire  political  system  shall  be  founded  and  administered  on 
a  purely  secular  basis  ;  and  that  whatever  changes  shall  prove  necessary  to  this 
end  shall  be  consistently,  unflinchingly,  and  promptly  made. 

"  Liberals  !  I  pledge  to  you  my  undivided  sympathies  and  most  vigorous 
co-operation,  both  in  The  Index  and  out  of  it,  in  this  work  of  local  and 
national  organization.  Let  us  begin  at  once  to  lay  the  foundations  of  a  great 
national  party  of  freedom,  which  shall  demand  the  entire  secularization  of  our 
municipal,  State,  and  national  government. 

"  Let  us  boldly  and  with  high  purpose  meet  the  duty  of  the  hour.  Rouse, 
then,  to  the  great  work  of  freeing  America  from  the  usurpations  of  the 
Church  !  Make  this  continent  from  ocean  to  ocean  sacred  to  human  liberty  ! 
Prove  that  you  are  worthy  descendants  of  those  whose  wisdom  and  patriotism 
gave  us  a  Constitution  untainted  with  superstitution  !  Shake  off  your  slumbers, 
and  break  the  chains  to  which  you  have  too  long  tamely  submitted." 

There  are  some  good  religious  people  who  from  entirely 
different  motives  and  aims  sympathize  with  a  part  of  this 
program,  under  the  mistaken  notion  that  the  separation 
of  church  and  state  must  be  absolute,  and  requires,  as  its 
logical  result,  the  exclusion  of  the  Bible  and  all  religious 
teaching  from  the  public  schools.  But  an  absolute  separa- 
tion is  an  impossibility,  as  we  have  seen  already  and  shall 
show  hereafter. 
\  The  state  cannot  be  divorced  from  morals,  and  morals 
/  cannot  be  divorced  from  religion.  The  state  is  more  in 
need  of  the  moral  support  of  the  church  than  the  church  is 
in  need  of  the  protection  of  the  state.  What  will  become 
of  a  state,  or  a  school,  which  is  indifferent  to  the  fundamen- 
tal virtues  of  honesty,  integrity,  justice,  temperance?  And 
how  can  these,  or   any  other  virtues,  be   more  effectually 


The  State  Constitutions.  45 

maintained  and  promoted  than  by  the  solemn  sanctions  of 
religion  which  binds  man  to  God  ?  We  will  not  speak  of  the 
graces  of  humility,  chastity,  and  charity,  which  Avere  and  are 
unknown  before  and  outside  of  revelation.  The  second  table 
of  the  Ten  Commandments  is  based  upon  the  first.  Love 
to  man  is  impossible  without  love  to  God,  who  first  loved  us. 
If  the  aim  of  the  "National  Association"  is  impracti- 
cable, the  aim  of  the  "Liberal  League"  is  tenfold  more  im- 
practicable. The  change  in  the  preamble  of  the  Constitu- 
tion would  be  an  easy  task  compared  with  the  task  of 
expelling  the  Christian  religion  from  the  national  life.  To 
carry  out  their  program,  the  Free-thinkers  would  have  to 
revolutionize  public  sentiment,  to  alter  the  constitutions 
and  laws  of  the  country,  to  undo  or  repudiate  our  whole 
history,  to  unchristianize  the  nation,  and  sink  it  below  the 
heathen  standard.  For  the  wisest  among  the  heathen  ac- 
knowledged the  necessity  of  religion  as  the  basis  of  the 
commonwealth.  Socrates  said  to  Alcibiades,  according  to 
Plato  :  "  To  act  justly  and  wisely,  you  must  act  according 
to  the  will  of  God."  Plutarch,  the  purest  and  noblest  of 
the  Platonists,  in  a  work  against  an  Epicurean  philosopher 
{Adv.  Colotcni),  makes  the  remarkable  statement:  "There 
never  was  a  state  of  atheists.  You  may  travel  all  over  the 
world,  and  you  may  find  cities  without  walls,  without  king, 
without  mint,  without  theatre,  or  gymnasium  ;  but  you  will 
nowhere  find  a  city  without  a  God,  without  prayer,  without 
oracle,  without  sacrifice.  Sooner  may  a  city  stand  without 
foundations,  than  a  state  without  belief  in  the  gods.  This 
is  the  bond  of  all  society,  and  the  pillar  of  all  legislation." 

THE    STATE    CONSTITUTIONS. 

The  Federal  Constitution  did  not  abolish  the  union  of 
church  and  state  where  it  previously  existed,  nor  docs  it 
forbid  any  of  the  States  to  establish  a  religion  or  to  favor 
a  particular  church.  It  leavesthem  free  to  deal  with  religion 
as  they  please,  provided  only  they  do  not  deprive  any 
American  citizen  of  his  right  to  worship  God  according  to 
his  conscience.    It  does  not  say:  "^  No  State  shall  make  a  law 

UNIVERSITl  ) 


46  Church  and  State  in  the  United  States. 

respecting  an  establishment  of  religion";  nor:  ^^ Neither  Con- 
gress nor  any  State,"  etc.,  but  simply :  "  Congress  shall  make 
no  law,"  etc.  The  States  retained  every  power,  jurisdiction, 
and  right  which  they  had  before,  except  those  only  which 
they  delegated  to  the  Congress  of  the  United  States  or  the 
departments  of  the  Federal  Government.  In  the  language 
of  the  Tenth  Amendment :  "  The  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively,  or 
to  the  people."  Hence,  as  Justice  Story  says  :  "  The  whole 
power  over  the  subject  of  religion  is  left  exclusively  to  the 
State  governments,  to  be  acted  upon  according  to  their  sense 
of  justice  and  the  State  constitutions."  The  States  are  sover- 
eign within  the  limits  of  the  supreme  sovereignty  of  the 
general  government,  which  is  confined  to  a  specified  number 
of  departments  of  general  national  interest,  such  as  army  and 
navy,  diplomatic  intercourse,  post-ofifice,  coinage  of  money, 
disposal  of  public  lands,  and  the  government  of  Territories. 
In  New  York  and  Virginia  the  union  of  church  and  state  was 
abolished  before  the  formation  of  the  Federal  Constitution  ; 
but  in  other  States  it  continued  for  many  years  afterward, 
though  without  persecution.  Connecticut  and  Massachusetts 
retained  and  exercised  (the  former  till  1818,  the  latter  till 
1833)  the  power  of  taxing  the  people  for  the  support  of  the 
Congregational  Church,  and  when  such  taxation  was  finally 
abolished,  many  good  and  intelligent  people  feared  disastrous 
consequences  for  the  fate  of  religion,  but  their  fears  were 
happily  disappointed  by  the  result.  In  Pennsylvania,  North 
Carolina,  South  Carolina,  Tennessee,  Maryland,  and  New 
Jersey,  atheists,  and  such  as  deny  "  a  future  state  of  reward 
and  punishment,"  are  excluded  from  public  of^ces,  and  blas- 
phemy is  subject  to  punishment.'  In  Delaware,  Kentucky, 
Maryland,  and  Tennessee,  clergymen  are  not  eligible  for  civil 
offices  and  for  the  legislature,  on  account  of  their  ecclesias- 
tical functions.  The  constitution  of  New  Hampshire  empow- 
ers the  legislature  to  authorize  towns,  parishes,  and  religious 

'  See  the  constitutional  provisions  of  these  States  in  Judge  Cooley's  "Consti- 
tutional Limitations,"  p.  579,  note. 


The  State  Constitutions,  47 

societies  to  make  adequate  provision,  at  their  own  expense,  for 
the  support  of  public  Protestant  worship,  but  not  to  tax  those 
of  other  sects  or  denominations.  An  attempt  was  made  in 
1876  to  amend  this  article  by  striking  out  the  word  Prates- 
tant,  but  it  failed.' 

It  is  remarkable,  however,  that  since  the  adoption  of  the 
Federal  Constitution  no  attempt  has  been  made  to  establish 
a  religion,  except  in  the  Mormon  Territory  of  Utah. 

Most  of  the  more  recent  State  constitutions  expressly  guar- 
antee religious  liberty  to  the  full  extent  of  the  First  Amend- 
ment, and  in  similar  language.     We  give  a  few  specimens  : ' 

The  constitution  of  Illinois  (II.  3)  declares  that  "the 
free  exercise  and  enjoyment  of  religious  profession  and  wor- 
ship, without  discrimination,  shall  forever  be  guaranteed,  and 
no  person  shall  be  denied  any  civil  or  political  right,  privilege, 
or  capacity  on  account  of  his  religious  opinions,"  and  that 
"  no  person  shall  be  required  to  attend  or  support  any  min- 
istry or  place  of  worship  against  his  consent,  nor  shall  any 
preference  be  given  by  law  to  any  denomination  or  mode  o( 
worship." 

The  constitution  of  Iowa  (I.  3,  4)  declares  that  "  the  gen- 
eral assembly  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof ;  nor  shall 
any  person  be  compelled  to  attend  any  place  of  worship, 
pay  tithes,  taxes,  or  other  rates  for  building  or  repairing 
places  of  worship,  or  the  maintenance  of  any  minister  or 
ministry.  No  religious  test  shall  be  required  as  a  qualifica- 
tion for  any  office  or  public  trust,  and  no  person  shall  be 
deprived  of  any  of  his  rights,  privileges  or  capacities,  or  dis- 
qualified from  the  performance  of  any  of  his  public  or  private 
duties,  or  rendered  incompetent  to  give  evidence  in  any 
court  of  law  or  equity,  in  consequence  of  his  opinion  on  the 
subject  of  religion." 

Similar  provisions  are  made  in  the  constitutions  of  Ala- 
bama, California,  Colorado,  Connecticut,  Florida,  Georgia, 
Indiana,  Kansas,  Maryland,  Michigan,  Minnesota,  Missis- 
sippi, Missouri,  Nevada,  New  Jersey,  New  York,  Oregon, 
'  Cooley,  /.  c,  p.  580,  note  2. 


48  Church  and  State  in  the  United  States. 

Texas,  and  other  States,  but  usually  with  an  express  caution 
against  licentiousness  and  immoral  practices.' 

J  udgeCooley  enumerates  five  points  which  are  not  lawful  un- 
der any  of  the  American  constitutions  :  I.  "  Any  law  respect- 
ing an  establishment  of  religion."  2.  "Compulsory  support,  by 
taxation  or  otherwise,  of  religion."  3.  "  Compulsory  attend- 
ance upon  religious  worship."  4.  "  Restraints  upon  the  free 
exercise  of  religion  according  to  the  dictates  of  conscience." 
5.  "  Restraints  upon  the  expression  of  religious  belief." " 

The  exceptions  are  remnants  of  older  ideas,  and  cannot 
resist  the  force  of  modern  progress. 

It  is  a  serious  question  whether  the  constitutions  of  all  the 
States  should  not  be  so  amended — if  necessary — as  to  pre- 
vent the  appropriation  of  public  money  for  sectarian  purposes. 
Such  appropriations  have  been  made  occasionally  by  the  leg- 
islature and  the  city  government  of  New  York  in  favor  of  the 
Roman  Catholics,  owing  to  the  political  influence  of  the  large 
Irish  vote.  The  State  must,  above  all  things,  be  just,  and 
support  either  all  or  none  of  the  religious  denominations. 

The  case  of  Mormonism  is  altogether  abnormal  and  irrec- 
oncilable with  the  genius  of  American  institutions.  In  that 
system  politics  and  religion  are  identified,  and  polygamy 
is  sanctioned  by  religion,  as  in  Mohammedanism.  This  is 
the  reason  why  the  Territory  of  Utah,  notwithstanding 
its  constitutional  number  of  inhabitants,  has  not  yet  been 
admitted  into  the  family  of  independent  States.  The  general 
government  cannot  attack  the  religion  of  the  Mormons,  as  a 
religion,  but  it  can  forbid  polygamy  as  a  social  institution, 
inconsistent  with  our  western  civilization,  and  the  Supreme 
Court  has  decided  in  favor  of  the  constitutionality  of  such 
prohibition  by  Congress.^  The  Mormons  must  give  up  this 
part  of  their  religion,  or  emigrate. 

EFFECT   OF   THE   CONSTITUTION   UPON   THE   CREEDS. 
The  ancient  or    oecumenical    creeds   (the  Apostles',  the 

'See  Cooley,  /.  c,  Ch.  XIII.,  579  sq.,  and  especially  Ben:  Perley  Poore. 
*'  The  Federal  and  State  Constitutions,  Colonial  Charters  and  Other  Organic 
Laws  of  the  United  States.  Compiled  under  an  order  of  the  U.  S.  Senate." 
Washington,  1877,  two  large  vols.  ^  L.  c,  p.  580. 

'  See  above,  p.  36,  and  Document  II. 


Effect  of  the  Constitution  iipojt  the  Creeds.  40 

Nicene,  and  the  Athanasian)  are  silent  on  the  relation  of 
church  and  state,  and  leave  perfect  freedom  on  the  subject, 
which  lies  outside  of  the  articles  of  faith  necessary  to  salvation. 

But  some  Protestant  confessions  of  faith,  framed  in  the 
Reformation  period,  when  church  and  state  were  closely- 
interwoven,  ascribe  to  the  civil  magistrate  ecclesiastical 
powers  and  duties  which  are  Erastian  or  caesaro-papal  in 
principle  and  entirely  inconsistent  with  the  freedom  and 
self-government  of  the  church.  I  fence  changes  in  the 
political  articles  of  those  confessions  became  necessary. 

The  Presbyterian  Church  took  the  lead  in  this  progress 
even  long  before  the  American  Revolution.  The  synod  of 
Philadelphia,  convened  September  19,  1729,  adopted  the 
Westminster  standards  of  1647,  with  a  liberal  construction 
and  with  the  express  exemption  of  "  some  clauses  in  the 
XXth  and  XXI lid  chapters  of  the  Confession  in  any  such 
sense  as  to  imply  that  the  civil  magistrate  hath  a  controlling 
power  over  synods  with  respect  to  the  exercise  of  their  minis- 
terial authority  or  power  to  persecute  any  for  their  religion^  ' 

After  the  revolutionary  war,  the  United  Synod  of  Phila- 
delphia and  New  York  met  at  Philadelphia,  May  28,  1787, 
(at  the  same  time  and  in  the  same  place  as  the  convention 
which  framed  the  Federal  Constitution),  and  proposed 
important  alterations  in  the  Westminster  Confession,  chap- 
ters XX.  (closing  paragraph),  XXIII.  3,  and  XXXI.  i,  2,  so 
as  to  eliminate  the  principle  of  statc-churchism  and  religious 
persecution,  and  to  proclaim  the  religious  liberty  and  legal 
equality  of  all  Christian  denominations.  These  alterations 
were  formally  adopted  by  the  Joint  Synod  at  Philadelphia, 
May  28,  17S8,  and  have  been  faithfully  adhered  to  by  the 
large  body  of  the  Presbyterian  Church  in  America.  It  is 
worthy  of  note  that  the  Scripture  passages  quoted  by  the  old 
Confession  in  favor  of  statc-churchism  and  the  ecclesiastical 
power  of  the  civil  magistrate  are  all  taken  from  the  Old 
Testament. 

The  alterations  may  be  seen  from  the  following  parallel 
texts : 

'  See  Moore's  "  Presbyterian  Digest,"  Philadelphia,  second  ed.,  1873,  p.  4  /<•/. 


so 


ClnircJi  and  State  in  the  United  States. 


Original  Text,  1647. 

Ch.  XXIII.  3.— Of  the  Civil  Magis- 
trate. 

The  civil  magistrate  may  not  assume 
to  himself  the  admini.stration  of  the 
Word  and  Sacraments,  or  the  power 
of  the  keys  of  the  kingdom  of  heaven ;  ' 
yet  he  hath  authority,  and  it  is  his 
duty  to  take  order,  that  unity  and 
peace  be  preserved  in  the  Church, 
that  the  truth  of  God  be  kept  pure 
and  entire,  that  all  blasphemies  and 
heresies  be  suppressed,  all  corruptions 
and  abuses  in  worship  and  disci- 
pline prevented  or  reformed,  and 
all  the  ordinances  of  God  duly 
settled,  administered,  and  observed.^ 
For  the  better  effecting  whereof 
he  hath  power  to  call  synods,  to 
be  present  at  them,  and  to  provide 
that  whatsoever  is  transacted  in  them 
be  according  to  the  mind  of  God.' 


'  2  Chron.  xxvi.  18  ;  Matt,  xviii. 
17  ;  xvi.  19  ;  i  Cor.  xii.  28,  29  ;  Eph. 
iv.  II,  12  ;  I  Cor.  iv.  i,  2  ;  Rom.  x. 
15  ;  Heb.  v.  4. 

*  Isa.  xlix.  23  ;  Psa.  cxxii.  9  ;  Ezra 
vii.  23-28  ;  Lev.  xxiv.  16  ;  Deut.  xiii. 
5,  6,  12;  2  Kings  xviii.  4  ;  I  Chron. 
xiii.  1-9 ;  2  Kings  xxiii.  1-26 ;  2 
Chron.  xv.  12,  13. 

*2  Chron.  xix.  8-1 1  ;  chaps,  xxix. 
and  XXX.  ;  Matt.  ii.  4,  5. 


American  Text,  1788. 

Ch.  XXIII.  3.— Of  the  Civil  Magis- 
trate. 

Civil  Magistrates  may  not  assume 
to  themselves  the  administration  of 
the  Word  and  Sacraments,'  or  the 
power  of  the  keys  of  the  kingdom  of 
heaven  ; '  or,  in  the  least,  interfere  in 
matters  of  faith.  ^  Yet,  as  nursing 
fathers,  it  is  tlie  duty  of  civil  magis- 
trates to  protect  the  Church  of  our 
common  Lord,  without  giving  the 
preference  to  any  denomination  of 
Christians  above  the  rest,  in  such  a 
manner  that  all  ecclesiastical  persons 
whatever  shall  enjoy  the  full,  free,  and 
unquestioned  liberty  of  discharging 
every  part  of  their  sacred  functions 
without  violence  or  danger.'*  And, 
as  Jesus  Christ  hath  appointed  a 
regular  government  and  discipline  in 
his  Church,  no  law  of  any  common- 
wealth should  interfere  with,  let,  or 
hinder  the  due  exercise  thereof. 
among  the  voluntary  members  of 
any  denomination  of  Christians,  ac- 
cording to  their  own  profession  and 
belief.'  It  is  the  duty  of  civil 
magistrates  to  protect  the  person  and 
good  name  of  all  their  people,  in  such 
an  effectual  manner  as  that  no  person 
be  suffered,  either  upon  pretence  of 
religion  or  infidelity,  to  offer  any 
indignity,  violence,  abuse,  or  injury 
to  any  other  person  whatsoever  ;  and 
to  take  order  that  all  religious  and 
ecclesiastical  assemblies  be  held  with- 
out molestation  or  disturbance.* 

'  2  Chron.  xxvi.  18. 
*Matt.  xvi.  19  ;  i  Cor.  iv.  i,  2. 
3  John    xviii.   36.   Mai.   ii.   7;  Acts 
V.  29. 

*  Isa.  xlix.  23. 

^  Psa.  cv.  15  ;  Acts,  xviii.  14,  15,  16. 

*  2   Sam.   xxiii.  3  ;    I     Tim.    ii.    I  ; 
Rom.  xiii.  4. 


Effect  of  the  Constitution  upo7i  the  Creeds. 


51 


American  Text,  i-]ZZ.— Continued. 
Ch.  XXXI.— Of  Synods  and  Councils. 

I.  For  the  better  government  and 
further  edification  of  the  church, 
there  ouglit  to  be  such  assemblies 
as  are  commonly  called  synods  or 
councils.' 

And  it  belongeth  to  the  overseers 
and  other  rulers  of  the  particular 
cliurches,  by  virtue  of  their  office, 
and  the  power  whicli  Christ  hath 
given  them  for  edification,  and  not 
for  destruction,  to  appoint  such  as- 
semblies ;  and  to  convene  together 
in  them,  as  often  as  they  shall  judge 
it  expedient  for  the  good  of  the 
church.'^ 

'  Acts  XV.  2,  4,  6. 
*  Acts  XV.  22,  23,  25. 


Original  Text,  1647. — CottUnued. 
Ch.  XXXI. — Of  Synods  and  Councils. 

I.  For  the  better  government  and 
further  edification  of  the  church, 
there  ought  to  be  such  assemblies 
as  are  commonly  called  synods  or 
councils.' 

II.  As  magistrates  may  lawfully  call 
a  synod  of  ministers  and  other  fit 
persons  to  consult  and  advise  with 
about  matters  of  religion''  ;  so,  if 
magistrates  be  open  enemies  to  the 
church,  the  ministers  of  Christ,  of 
themselves,  by  virtue  of  their  office, 
or  they,  with  other  fit  persons,  upon 
delegation  from  their  churches,  may 
meet  together  in  such  assemblies.-* 

'  Acts  XV.  2,  4,  6. 

*  Isa.  xlix.  23  ;  i  Tim.  ii.  I,  2  ; 
2  Chron.  xix.  S-ir  ;  chaps,  xxix.  and 
XXX.  ;  Matt.  ii.  4,  5  ;  Prov.  xi.  14. 

*  Acts  XV.  2,  4,  22,  23,  25. 

In  Ch.  XX.,  §  4,  the  last  sentence,  "and  by  the  power  of 
the  civil  magistrate,"  was  omitted,  so  as  to  read,  "  they 
[the  offenders]  may  lawfully  be  called  to  account,  and 
proceeded  against  by  the  censures  of  the  Church." 

The  only  change  made  in  the  Larger  Catechism  was  the 
striking  out  of  the  words  "  tolerating  a  false  religion,"  among 
the  sins  forbidden  in  the  Second  Commandment  (Quest.  109). 

^[Ivvn  amallcr  Presbyterian  bodies,  the  Associate  Church, 
and—tiie  ReTormGd  Presbyterian  Church,  adhere  to  the 
theory  of  the  Scotch  Covenanters,  and  abstain  from  voting 
till  the  Constitution  is  so  amended  as  to  acknowledge  the 
sovereignty  of  God  and  the  subserviency  of  the  state  to 
the  kingdom  of  Christ ;  but  they  nevertheless  claini  the 
freedom  and  independence  of  the  church  from  the  state.' 

The  example  set  by  the  Presbyterian  Church  in  the 
United  States  was  followed  by  the  Protestant  Episcopal 
Church,  which  was  organized  as  a  distinct  communion  in 
consequence  of  the  separation  from  the  Crown  and  Church 
of  England   in    1785.      At  first   this   church    made    radical 


'  Schafl's  ■'  Creeds  of  Christendom,"  vol.  i.  Si  1-813. 


$2  CJnirch  and  State  m  the  United  States. 

changes  in  her  liturgy  and  reduced  the  Thirty-nine  Articles 
to  twenty,  and  afterward  to  seventeen,  and  omitted  the 
Nicene  and  Athanasian  creeds  altogether  under  the  influence 
of  latitudinarianism  which  prevailed  at  that  time.  But  the 
"Proposed  Book,"  or  provisional  liturgy  of  1786,  which 
embodied  these  changes,  failed  to  give  satisfaction  and  was 
opposed  by  the  English  bishops.  The  General  Convention 
at  Trenton,  New  Jersey,  September  8-12,  1801,  adopted 
the  Thirty-nine  Articles,  yet  with  the  omission  of  the 
Athanasian  Creed  in  Article  VIII.,  and  of  Article  XXXVII., 
on  the  Powers  of  the  Civil  Magistrate.  This  article  asserts 
in  the  first  paragraph  that 

"  The  Queen's  [King's]  Majesty  hath  the  chief  power  in  this  realm  of 
England  and  other  of  her  [his]  dominions,  unto  whom  the  chief  government 
of  all  estates  of  this  realm,  luhether  they  be  ecclesiastical  or  civil,  in  all  causes 
doth  appertain,  and  it  is  not,  nor  ought  to  be,  subject  to  any  foreign 
jurisdiction." 

For  this  first  section  the  following  neccessary  improve- 
ment was  substituted  in  the  American  revision : 

"  The  power  of  the  civil  magistrate  extendeth  to  all  men,  as  well  clergy  as 

laity,  in  all  things  temporal  ;  bttt  hath  no  authority  in  things  purely  spiritual. 

I  And  we  hold  it  to  be  the  duty  of  all  men  who  are  professors  of  the  gospel,  to 

I  pay  respectful   obedience  to   the  civil   authority,   regularly   and   legitimately 

■   constituted." 

The  rest  of  the  Article  is  omitted.  Article  XXI.,  which, 
asserts  that  "  General  Councils  may  not  be  gathered  together 
without  the  commandment  and  zvill  of  princes^'  was  also 
omitted,  and  Articles  XXXV.  {Of  the  Homilies)  and 
XXXIX.  {Of  a  CJiristian  mans  Oath)  were  abridged.' 
y/^  As  to  the  Methodists,  who  are  the  most  numerous  body 
of  Protestant  Christians  in  the  United  States,  they  had 
previously  disowned  the  political  articles  of  the  Church  of 
England  by  adopting  the  abridgment  of  John  Wesley,  who 
in  1784  had  reduced  the  Thirty-nine  Articles  to  twenty-five.^ 

The  Lutheran  Formula  of  Concord  (1576)  excludes  the 
Anabaptists    from    toleration    "  in   the    church    and    in   the 

'  See  the  texts   of    the    Anglican  and    Anglo-American  Articles    in  parallel 
columns  in  SchafT's  "  Creeds,"  vol.  iii.  4S7-516. 
*  SchafI,  iii.  807,  sqq. 


TJie  Nation  and  Christianity.  53 

state."  '  But  this  prohibition  has  recently  been  legally  re- 
moved or  ceased  to  be  enforced  even  in  strictly  Lutheran 
countries.     In  the  United  States  it  has  no  meaninef. 

The  Baptists  and  Quakers  have  always  protested  against 
the  union  of  church  and  state,  and  against  all  kinds  of 
religious   intolerance. 

The  independence  of  the  church  from  the  state  is  uni- 
versally adopted,  and  religious  persecution  is  universally 
condemned,  even  by  the  most  orthodox  and  bigoted  of  the 
American  churches. 

THE  NATION  AND  CHRISTIANITY. 

The  separation  of  church   and   state   as   it   exists  in  this         ] 
countr}'-  is  not  a  separation  of  the  nation  from  Christianity.         ( 

This  seems  paradoxical  and  impossible  to  all  who  entertain  ""^ 
an  absolutist  or  Utopian  idea  of  the  state,  and  identify  it 
either  with  the  government,  as  did  Louis  XIV.  (according  to 
his  maxim  :  Ldtat  ccst  moiy,  or  with  the  realization  of  the 
moral  idea,  as  HegeP  and  Rothe,*  or  with  the  nation,  as 
Bluntschli,'  and  Mulford.' 

^  '*  AnabaptisiiE  .  .  .  talemdoctrinant  profttentttr  qtutneqttein  Ecchsia  tu-que 
in  politia  [Gerw.  ed.:  voch  in  der  Polizei  und  loelllichem  Rtgiment\,  ucque  in 
sconotnia  \^IIattshaltu7ig\  (oUrari  poUst." — Epitome,  Art.  XII.  See  Schaff, 
I.e.,  iii.  173. 

*  This  corresponds  to  the  Roman  Catholic  idea  that  the  clergy  or  hierarchy 
are  the  church  ;  while  the  laity  are  doomed  to  passive  obedience.  Pope  Pius 
IX.  said  during  the  Vatican  Council :   "  I  am  the  tradition." 

^  "Philosophic  des  Rechts."  Hegel  calls  the  state  "  die  Wirklichkeit  der 
sittlichen  Idee"  ''die  selbstbewttsste  Vemiinftigkeit  und  Sittlichkeit"  ''das 
System  der  sittlichen  Welt."     ("  Works,"  vol.  viii.   p.   340^^17.) 

*  Richard  Rothc,  in  his  "  Anfange  der  christlichen  Kirche,"  (Wittenberg, 
1837,  pp.  I-13S),  teaches  the  ultimate  absorption  of  religion  into  morals,  and 
of  the  church  into  an  ideal  state,  which  he  identifies  with  the  kingdom  of  Cod 
(the  fiaCiXEta  vov  Oeov),  But  the  ultimate  state  is  a  theocracy  where  God 
shall  be  all  in  all.     (i  Cor.  xv.  28.) 

*  "  Lehre  vom  moderncn  Staat."  Engl,  translation  :  "  Thcorj-of  the  Modem 
State,"  Oxford,  18S5. 

*  "  The  Nation  :  The  Foundations  of  Civil  and  Political  Life  in  the  United 
States,"  Boston,  1S70,  gth  edition,  18S4.  This  work  grew  out  of  the  enthusiasm 
for  the  nation  enkindled  by  the  civil  war  for  its  salvation.  It  is  a  profound 
study  of  speculative  politics,  with  the  main  ideas  borrowed  from  Bluntschli, 
and  Hegel.  Mulford  wrote  afterwards  a  theological  treatise  under  the  title, 
*'  The  Republic  of  God,"  Boston,  9th  cd.,  1886. 


54  ChurcJi  and  State  in  the  United  States. 

^^hc  tendency  of  modern  times  is  to  limit  the  powers  of 
the  government,  and  to  raise  the  liberty  of  the  people. 
The  government  is  for  the  people,  and  not  the  people  for 
the  government.  In  ancient  Greece  and  Rome  the  freeman 
was  lost  in  the  citizen,  and  the  majority  of  the  people  were 
slaves.  Plato  carried  this  idea  to  the  extent  of  community 
of  property,  wives,  and  children,  in  his  Utopian  republic. 
Against  this  Aristotle  protested  with  his  strong  realistic 
sense,  and  defended  in  his  "  Politics  "  the  rights  of  property 
and  the  dignity  of  the  famify.  The  American  ideal  of  the 
state  is  a  republic  of  self-governing  freemen  who  are  a  law  to 
themselves.     "  That  government  is  best  which  governs  least^'l^ 

The  state  can  never  be  indifferent  to  the  morals  of  the 
people  ;  it  can  never  prosper  without  education  and  public 
virtue.  Nevertheless  its  direct  and  chief  concern  in  our 
country  is  with  the  political,  civil,  and  secular  affairs ;  while 
the  literary,  moral,  and  religious  interests  are  left  to  the  vol- 
untary agency  of  individuals,  societies,  and  churches,  under 
the  protection  of  the  laws.  In  Europe  the  people  look  to 
the  government  for  taking  the  initiative  ;  in  America  they 
help  themselves  and  go  ahead. 

The  nation  is  much  broader  and  deeper  than  the  state, 
and  the  deepest  thing  in  the  nation's  heart  is  its  religion. 
. '  If  we  speak  of  a  Christian  nation  we  must  take  the  word  in 
the  qualified  sense  of  the  prevailing  religious  sentiment  and 
profession  ;  for  in  any  nation  and  under  any  relation  of  church 
and  state,  there  are  multitudes  of  unbelievers,  misbelievers, 
and  hypocrites.  Moreover,  we  must  not  measure  the  Christian 
character  of  a  people  by  outward  signs,  such  as  crosses,  cruci- 
fixes, pictures,  processions,  clerical  coats,  and  monastic  cowls, 
all  of  which  abound  in  Roman  Catholic  countries  and  in 
Russia,  on  the  streets  and  in  public  places,  but  are  sel- 
dom seen  in  the  United  States.  We  must  go  to  the 
churches  and  Sunday-schools,  visit  the  houses  and  family 
altars,  attend  the  numerous  meetings  of  synods,  conferences, 
conventions,  observe  the  sacred  stillness  of  the  Lord's  Day, 
converse  with  leading  men  of  all  professions  and  grades  of 
culture,  study  the  religious  literature   and  periodical  press 


TJie  Nation  and  Christianity.  cc 

with  its  accounts  of  the  daily  thoughts,  words,  and  deeds  of 
the  people.  A  foreigner  may  at  first  get  bewildered  by  the 
seeming  confusion  of  ideas,  and  be  repelled  by  strange  nov- 
elties or  eccentricities ;  but  he  will  gradually  be  impressed 
with  the  unity  and  strength  of  the  national  sentiment  on 
all  vital  questions  of  religion  and  morals. 

With  this  understanding  we  may  boldly  assert  that  the 
American  nation  is  as  religious  and  as  Christian  as  any  nation 
on  earth,  and  in  some  respects  even  more  so,  for  the  very 
reason  that  the  profession  and  support  of  religion  are  left 
entirely  free.  State-churchism  is  apt  to  breed  hypocrisy  and 
infidelity,  while  free-churchism  favors  the  growth  of  religion. 

Alexis  de  Tocqueville,  the  most  philosophic  foreign 
observer  of  American  institutions,  says  : 

"  There  is  no  country  in  the  whole  world  in  which  the  Christian  religion 
retains  a  greater  influence  over  the  souls  of  men  than  in  America,  and  there  can 
be  no  greater  proof  of  its  utility,  and  of  its  conformity  to  human  nature,  than 
that  its  influence  is  most  powerfully  felt  over  the  most  enlightened  and  free 
nation  of  the  earth.  .  .  .  Xn  the  United  States  religion  exercises  but  little 
influence  upon  the  laws  and  upon  the  details  of  public  opinion,  but  it  directs 
the  manners  of  the  community,  and  by  regulating  domestic  life,  it  rci^ulatcs  th« 
state.  .  .  .  Religion  in  America  takes  no  direct  part  in  the  government  of 
society,  but  it  must,  nevertheless,  be  regarded  as  the  foremost  of  the  political 
institutions  of  that  country,  for  if  it  does  not  impart  a  taste  for  freedom,  it 
facilitates  the  use  of  free  institutions^  I  am  certain  that  the  Americans  hold 
religion  to  be  indispensable  to  the  maintenance  of  republican  institutions.  This 
opinion  is  not  peculiar  to  a  class  of  citizens  or  to  a  party,  but  it  belongs  to  the 
whole  nation  and  to  every  rank  of  society."  ' 

This  judgment  of  the  celebrated  French  scholar  and  states- 
man is  extremely  important,  and  worthy  of  being  seriously 
considered  by  all  our  educators  and  politicians,xin  opposition 
to  infidels  and  anarchists,  foreign  and  domestic,  who  arc 
zealous  in  spreading  the  seed  of  atheism  and  irreligion,  and 
are  undermining  the  very  foundations  of  our  republic.  I 
fully  agree  with  De  Tocqueville.  I  came  to  the  same  con- 
clusion soon  after  my  immigration  to  America  in  1844,  and 
I  have  been  confirmed  in  it  by  an  experience  of  forty-three 
years  and  a  dozen  visits  to   Europe.     In  Roman  Catholic 

'  "  Democracy  in  America,"  translated  by   Henry  Reeve,  New  York,  1S38, 
vol.  i.  pp.  2S5,  286  sq. 


56  CJmrch  and  State  in  the  United  States. 

countries  and  in  Russia  there  is  more  outward  show,  in  Prot- 
estant countries  more  inward  substance,  of  religion.  There 
the  common  people  are  devout  and  churchy,  but  ignorant 
and  superstitious  ;  while  the  educated  classes  are  skeptical 
or  indifferent.  In  Protestant  countries  there  is  more  infor- 
mation and  intelligent  faith,  but  also  a  vast  amount  of  ration- 
alism and  unbelief.  In  Great  Britain  Christianity  has  a 
stronger  hold  on  all  classes  of  society  than  on  the  Continent, 
and  this  is  partly  due  to  the  fact  that  it  is  allowed  more 

freedom. 

Religions  Activity. 

/'""The  Christian  character  of  the  American  nation  is  apparent 
"^-^om  the  following  facts  : 

I.  The  United  States  equal  and  even  surpass  most  Chris- 
tian countries  in  religious  energy  and  activity  of  every  kind. 
The  rapid  multiplication  of  churches,  Sunday-schools,  Young 
Men's  Christian  Associations,  religious  and  charitable  insti- 
tutions all  over  the  country,  by  voluntary  contributions,  with- 
out any  aid  from  the  government,  has  no  parallel  in  history. 
Nowhere  are  churches  better  attended,  the  Lord's  Day  more 
strictly  observed,  the  Bible  more  revered  and  studied,  the 
clerical  profession  more  respected,  than  in  North  America. 

It  is  so  often  asserted  by  the  advocates  of  state-churchism 
that  the  clergy  are  made  servants  of  the  congregation  from 
which  they  draw  their  support.  In  reply  we  say,  that  they 
ought  to  be  servants  of  the  people  in  the  best  sense  of  the 
word,  as  Christ  came  to  serve,  and  washed  his  disciples' 
feet ;  that  American  ministers  are  esteemed  in  proportion  to 
the  fidelity  and  fearlessness  with  which  they  discharge  their 
duty  to  God  and  men  ;  and  that  the  congregation  feel  more 
attached  to  a  pastor  whom  they  choose  and  support,  than  to 
a  pastor  who  is  set  over  them  by  the  government  whether  he 
suits  them  or  not.     A  congregation  is  not  a  flock  of  sheep. 

We  may  quote  here  a  just  and  noble  tribute  which  a  states- 
man, Daniel  Webster,  the  American  Demosthenes,  paid  to 
the  American  clergy,  in  his  famous  speech  on  the  Girard 
will  case  * : 

'  "  Worksof  Daniel  Webster,"  vol.  vi.  pp.  140, 141.  Tenth  ed.,  Boston,  1857. 


The  Nation  and  CJiristianity.  57 

"  I  take  it  upon  myself  to  say,  that  in  no  country  in  thfe  world,  upon  either 
continent,  can  there  be  found  a  body  of  ministers  of  the  gospel  who  perform 
so  much  service  to  man,  in  such  a  full  spirit  of  self-denial,  under  so  little  en- 
couragement from  government  of  any  kind,  and  under  circumstances  almost 
always  much  straitened  and  often  distressed,  as  the  ministers  of  the  gospel  in 
the  United  States,  of  all  denominations.  Tliey  form  no  part  of  any  established 
order  of  religion  ;  they  constitute  no  hierarchy  ;  they  enjoy  no  peculiar  prin- 
leges.  In  some  of  the  States  they  are  even  shut  out  from  all  participation  in 
the  political  rights  and  privileges  enjoyed  by  their  fellow-citizens.  They  enjoy 
no  tithes,  no  public  provision  of  any  kind.  Except  here  and  there,  in  large 
cities,  where  a  wealthy  individual  occasionally  makes  a  donation  for  the  sup- 
port of  public  worship,  what  have  they  to  depend  upon  ?  They  have  to  depend 
entirely  on  the  voluntary  contributions  of  those  who  hear  them. 

"  And  this  body  of  clergymen  has  shown,  to  the  honor  of  their  own  country 
and  to  the  astonishment  of  the  hierarchies  of  the  Old  World,  that  it  is  practi- 
cable in  free  governments  to  raise  and  sustain  by  voluntary  contributions  alone 
a  body  of  clergymen,  which,  for  devotcdncss  to  their  sacred  calling,  for  purity 
of  life  and  character,  for  learning,  intelligence,  piety,  and  that  wisdom  which 
cometh  from  above,  is  inferior  to  none,  and  superior  to  most  others. 

"  I  hope  that  our  learned  men  have  done  something  for  the  honor  of  our 
literature  abroad,  I  hope  that  the  courts  of  justice  and  members  of  the  bar  of 
this  country  have  done  something  to  elevate  the  character  of  the  profession  of 
the  law.  I  hope  that  the  discussions  above  (in  Congress)  have  done  something 
to  meliorate  the  condition  of  the  human  race,  to  secure  and  extend  the  great 
charter  of  human  rights,  and  to  strengthen  and  advance  the  great  jirinciplcs  of 
human  liberty.  But  I  contend  that  no  literary  efforts,  no  adjudications,  no 
constitutional  discussions,  nothing  that  has  been  done  or  said  in  favor  of  the 
great  interests  of  universal  man,  has  done  this  country  more  credit,  at  home  or 
abroad,  than  the  establishment  of  our  body  of  clergymen,  their  support  by 
voluntary  contributions,  and  the  general  excellence  of  their  character  for  piety 
and  learning. 

"The  great  truth  has  thus  been  proclaimed  and  proved,  a  truth  which  I 
believe  will  in  time  to  come  shake  all  the  hierarchies  of  Europe,  that  the  vol- 
untary support  of  such  a  ministry,  under  free  institutions,  is  a  practicable  idea." 


Christian    Legislation. 

2.  Our  laws  recognize  Christianity,  protect  cliurch  proper- 
ty, and  decide  cases  of  litigation  according  to  the  creed  and 
constitution  of  the  denomination  to  which  the  property 
belongs. 

The  Supreme  Court  of  the  United  States  in  the  case  of 
Watson  vs.  Jones,  concerning  a  disputed  Presbyterian 
church  property  in  Louisville,  Kentucky,  decided  (Decem- 
ber, 1871)  that : 


^ 


58  CJntrch  and  State  iit  the  United  States. 

"  In  such  cases  where  the  right  of  property  in  the  civil  court  is  dependent  on 
the  question  of  doctrine,  discipline,  ecclesiastical  law,  rule,  or  custom,  or  church 
government,  and  that  has  been  decided  by  the  highest  tribunal  within  the 
organization  to  which  it  has  been  carried,  t/ie  civil  court  will  accept  that  de- 
cision as  conchtsive,  and  be  governed  by  it  i?i  its  application  to  the  case  be- 
fore it." ' 

Christianity  is  a  part  of  the  common  law  of  England, 
according  to  the  judicial  declaration  of  Sir  Matthew  Hale 
and  other  English  judges.'  The  same  may  be  said  of  the 
United  States  to  a  limited  extent,  namely  as  far  as  the  prin- 
ciples and  precepts  of  Christianity  have  been  incorporated  in 
our  laws,  and  as  far  as  is  consistent  with  religious  and  de- 
nominational equality.  ''"For  our  laws  give  no  preference  to 
/  any  creed,  but  protect  allalike.  They  protect  Jews  as  well  as 
V  /  Christians,  infidels  as  well  as  believers,  in  the  enjoyment  of 
their  rights,  provided  they  do  not  disturb  the  public  peace"^, 

The  Supreme  Court  of  Pennsylvania,  in  the  case  of  Upde- 
graph  against  the  ConivionzvealtJi,  February  sessions,  1822, 
argued  in  the  Mayor's  Court  of  the  city  of  Pittsburg,  de- 
cided that  "  Christianity  is  and  always  has  been  a  part  of  the 
common  law  of  Pennsylvania";  and  that  "maliciously  to 
'  vilify  the  Christian  religion  is  an  indictable  ofTence."  '  This 
Christianity  was,  however,  defined  by  J.udge   Duncan,  who 


delivered  the  opinion  of  the  court,  as  V^^;/rr«/  Christianit] 
without  the  spiritual  artillery  of  European  countries  ;  not 
Christianity  founded  on  any  particular  religious  tenets ;  not 
Christianity  with  an  established  church,  and  tithes,  and  spir- 
itual courts,  but  Christianity  zvith  liberty  of  conscicjice  to  all 
meny  * 

Daniel  Webster,  in  the  celebrated  Girard  will  case,  argued 

'  "  United  States  Supreme  Court  Reports,"  13.  Wallace,  p.  680.  (In 
"Cases  Argued  and  Adjudged,   December  Term,    1871.") 

'  Blackstone,  "Commentaries,"  Book  IV.  59,  says:  "Christianity  is  part 
of  the  laws  of  England." 

*  Abner  Updegraph,  of  Pittsburg,  was  charged  with  vilifying  the  Christian 
religion  and  declaring  that  the  Holy  Scriptures  were  a  mere  fable,  and  con- 
tained, with  a  number  of  good  things,  a  great  many  lies.  See  "  Reports  of 
Cases  adjudged  in  the  Supreme  Court  of  Pennsylvania,"  by  Thomas  Sergeant 
and  William  Ravvle,  Jr.  Phila.,  vol.  xi.  394,  sqq.  The  opinion  is  given  in 
full%i  Document  IX. 

^  Ibid.  p.  400. 


TJie  Nation  atid  Christianity.  59 

before  the  United  States  Supreme  Court  in  Washington, 
February,  1844,  took  the  same  view  and  gave  it  a  wider  ap- 
plication. The  most  eloquent  and  impressive  part  of  his 
argument  against  the  will  is  that  in  which  he  shows  the 
close  connection  of  education  with  religion.  Wc  quote  the 
following  passage : 

"It  is  the  same  in  Pennsylvania  as  elsewhere  ;  the  general  principles  and 
public  policy  are  sometimes  established  by  constitutional  provisions,  some- 
times by  legislative  enactments,  sometimes  by  judicial  decisions,  sometimes  by 
general  consent.  But  however  they  may  be  established,  there  is  nothing  that 
we  look  for  with  more  certainty  than  the  general  principle  that  Christianity  is 
part  of  the  law  of  the  land.  This  was  the  case  among  the  Puritans  of  New 
England,  the  Episcopalians  of  the  Southern  States,  the  Pennsylvania  Quakers, 
the  Baptists,  the  mass  of  the  followers  of  Whitefield  and  Wesley,  and  the 
Presbyterians  ;  all  brought  and  all  adopted  this  great  truth,  and  all  have  sus- 
tained it.  And  where  there  is  any  religious  sentiment  amongst  men  at  all,  this 
sentiment  incorporates  itself  with  the  law.  Every  thing  declares  it.  The 
massive  cathedral  of  the  Catholic  ;  the  Episcopalian  church,  with  its  lofty  spire 
pointing  heavenward  ;  the  plain  temple  of  the  Quaker  ;  the  log  church  of  the 
hardy  pioneer  of  the  wilderness  ;  the  mementos  and  memorials  around  and 
about  us  ;  the  consecrated  graveyards,  their  tombstones  and  epitaphs,  their 
silent  vaults,  their  mouldering  contents, — all  attest  it.  T/ie  dead  prove  it  as 
well  as  the  living.  The  generations  that  are  gone  before  speak  it,  and  pro- 
nounce it  from  the  tomb.  We  feel  it.  All,  all  proclaim  that  Christianity, 
general,  tolerant  Christianity,  Christianity  independent  of  sects  and  parties, 
that  Christianity  to  wliich  the  sword  and  fagot  are  unknown,  general,  tolerant 
Christianity,  is  the  law  of  the  land." ' 

The  Supreme  Court  sustained  the  will  and  the  previous 
decision  of  the  Circuit  Court  of  the  Eastern  District  of 
Pennsylvania  (1841),  but  on  the  ground  that,  while  it  ex- 
cluded ecclesiastics  from  holding  office  in  Girard  College,  it 
was  not  expressly  hostile  to  the  Christian  religion,  and  did 
r\ot  forbid  \\\c  reading  of  the  Bible  and  the  teaching  of  un- 
sectarian  Christianity  by  laymen.  Justice  Stor\',  in  deliver- 
ing the  opinion  of  the  court,  admitted  that  "the  Ciiristian 
religion  is  truly  a  part  of  the  common  law  of  Pennsylvania," 
but  that  this  proposition  is  to  be  received  with  its  appro- 
priate qualifications,  and  in  connection  with  the  bill  of  rights 
of  that  State  and  the  full  liberty  of  religion  guaranteed  by 
the  constitution  of  1790  and  1838.     He  concludes  : 

'  Webster's  "  Works,"  vol.  vi.  176.      Tlic  italics  arc  Webster's. 


6o  Church  and  State  in  the  United  States. 

"  So  that  we  are  compelled  to  admit  that,  although  Christianity  be  a  part  of 
the  common  law  of  this  State,  yet  it  is  so  in  this  qualified  sense,  that  its  divine 
origin  and  truth  are  admitted,  and  therefore  it  is  not  to  be  maliciously  and 
openly  reviled  and  blasphemed  against,  to  the  annoyance  of  believers  or  the 
injury  of  the  public.  Such  was  the  doctrine  of  the  Supreme  Court  of  Pennsyl- 
vania in  Updegraph  v.  The  Commonwealth,  n  Serg.  and  Rawle,  394."  ' 

In  the  State  of  New  York  Christianity  is  likewise  recog- 
-^  nized  by  the  law,  and  blasphemy  is  punishable.  In  the  case  of 
TIic people  against  Riiggles,  who  was  indicted,  December,  18 10, 
for  blasphemous  utterances  concerning  Christ,  the  Supreme 
Court  at  Albany,  August,  1811,  confirmed  the  judgmenh 
of  imprisonment  and  a  fine  of  $500.^  Chief-Justice  James 
Kent,  one  of  the  fathers  of  American  jurisprudence,  and 
author  of  the  "  Commentaries  on  American  Law,"  in  de- 
livering the  opinion  of  the  court,  declared  that  "  we  are 
a  Christian  people,"  and  said  : 

"  The  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion,  whatever 
it  may  be,  and  free  and  decent  discussions  on  any  religious  subject,  are  granted 
and  secured  ;  but  to  revile  with  malicious  and  blasphemous  contempt  the  religion 
professed  by  almost  the  whole  community  is  an  abuse  of  that  right.  .  .  .  We  are 
a  Christian  people,  and  the  morality  of  the  country  is  deeply  ingrafted  upon 
Christianity.  .  .  .  This  declaration  [of  the  New  York  Constitution  in  favor 
of  religious  liberty]  never  meant  to  withdraw  religion  in  general,  and  with  it 
the  best  sanctions  of  moral  and  social  obligation,  from  all  consideration  and 
motive  of  the  law.  To  construe  it  as  breaking  down  the  common  law  barriers 
against  licentious,  wanton,  and  impious  attacks  upon  Christianity  itself,  would 
be  an  enormous  perversion  of  its  meaning." 

In  the  important  case  of  The  people  vs.  Lindenniiillcr  (who 
had  openly  violated  the  Sunday  laws  and  caused  successive 
suits),  the  Supreme  Courtof  the  State  of  New  York,  May  29, 
1861,  strongly  maintained  the  same  ground.  Justice  Allen 
in  delivering  the  opinion,  his  associates  concurring,  said: 

'  "  Reports  of  Cases  Argued  and  Adjudged  in  the  Supreme  Court  of  the 
United  States,  January  Term,  1844."  By  B.  C.  Howard.  Vol.  ii.,  Phila.,  1845, 
p.  183  sqq.,  especially  pp.  iq8  and  199.  The  Girard  College  is  a  noble  insti- 
tution for  the  education  of  orphans,  and  has,  so  far,  had  earnest  Christian  lay- 
men as  presidents,  who  conduct  it  in  the  spirit  of  unsectarian  Christianity. 

'  "  Reports  of  Cases  Argued  and  Determined  in  the  Supreme  Court  of  Judi- 
cature in  the  State  of  New  York."  By  William  Johnson,  vol.  viii.  p.  1(^0 sqq. 
See  the  whole  decision  in  Document  X. 


The  Nation  and  Christianity.  6r 

"  Christianity  is  not  the  legal  religion  of  the  State,  as  established  by  law. 
If  it  were,  it  would  be  a  civil  or  political  institution,  which  it  is  not  ;  but  this  is 
not  inconsistent  with  the  idea  that  it  is  in  fact,  and  ever  has  been,  the  reli- 
gion of  the  people.  This  fact  is  everj'whcre  prominent  in  all  our  civil  and 
political  history,  and  has  been,  from  the  first,  recognized  and  acted  upon  by 
the  people,  as  well  as  by  constitutional  conventions,  by  legislatures,  and  by 
courts  of  justice."  ' 

A  similar  position  of  the  connection  between  Christianity 
and  the  state  is  taken  by  the  courts  of  Massachusetts, 
Delaware,  and  New  Jersey.' 

Judge  Theodore  W.  Dwight,  president  of  the  Columbia 
Law  School,  New  York,  and  one  of  the  most  learned  jurists 
in  the  United  States,  whom  I  consulted  on  the  subject,  gives 
his  opinion  in  a  letter  as  follows : 

<*'  It  is  well  settled  by  decisions  in  the  courts  of  the  leading  States  of  the 
Union — e.g..  New  York,  Pennsylvania,  and  Massachusetts — that  Christianity  is 
a  part  of  the  common  law  of  the  state.  Its  recognition  is  shown  in  the  admin- 
istration of  oaths  in  the  courts  of  justice,  in  the  rules,  which  punish  those  who 
wilfully  blaspheme,  in  the  observance  of  Sunday,  in  the  prohibition  of  profanity, 
in  the  legal  establishment  of  permanent  charitable  trusts,  and  in  the  legal  prin- 
ciples which  control  a  parent  in  the  education  and  training  of  his  children. 
One  of  the  American  courts  (that  of  Pennsylvania)  states  the  law  in  this  manner: 
Christianity  is  and  always  has  been  a  part  of  the  common  law  of  this  State — 
'Christianity  without  the  spiritual  artillery  of  European  countries — not  Christian- 
ity founded  on  any  particular  religious  tenets — not  Christianity  with  an  estab- 
lished church  and  tithes  and  spiritual  courts,  but  Christianity  with  liberty  of 
conscience  to  all  men.' 

' '  The  American  States  adopted  these  principles  from  the  common  law  of 
England,  rejecting  such  portions  of  the  English  law  on  this  subject  as  were  not 
suited  to  their  customs  and  institutions.  Our  national  development  has  in  it 
the  best  and  purest  elements  of  histoiic  Christianity,  as  related  to  the  govern- 
ment of  States.  Should  we  tear  Christianity  out  of  our  law,  we  would  rob  our 
law  of  its  fairest  jewels,  we  would  deprive  it  of  its  richest  treasures,  we  would 
arrest  its  growth,  and  bereave  it  of  its  capacity  to  adapt  itself  to  the  progress  in 
culture,  refinement,  and  morality  of  those,  for  whose  benefit  it  properly  exists." 

There  are  indeed  able  jurists  who  hold  a  different  view, 
and  maintain  that  our  laws  deal  only  with  public  morality. 

'  See  Document  XI. 

*  In  New  Jersey  a  man  was  recently  punished  for  blasphemy,  in  spite  of  the 
eloquent  defence  of  Colonel  Robert  G.  Ingersoll,  the  apostle  of  American  infi- 
delity, who  denounced  the  law  as  an  infringement  of  the  right  of  free  speech. 
An  editorial  in  the  Albany  Law  Journal,  June  4,  1S87,  on  this  case,  defends 
the  constitutionality,  but  doubts  the  policy  of  such  prosecutions. 


62  Church  and  State  in  the  United  States. 

,Z]SIobocly  can  be  punished  in  this  country  for  rejecting  Christi- 
anity as  a  system  of  behef  or  even  of  conduct.  But  all 
must  admit  that  the  American  system  of  law,  whether  inher- 
ited from  England  or  enacted  by  statute,  has  grown  up, 
together  with  our  whole  civilization,  under  the  influence  of 
the  Christian  religion,  and  is,  directly  or  indirectly,  indebted 
to  it  for  its  best  elements.  It  breathes  the  spirit  of  justice 
and  humanity,  and  protects  the  equal  rights  of  all.  Such  a 
system  could  not  have  originated  on  heathen  or  Mohammedan 
soil.  "And  we  may  say  that  our  laws  are  all  the  more  Christian 
because  they  protect  the  Jew  and  the  infidel,  as  well  as  the 
Christian  of  whatever  creed,  in  the  enjoyment  of  the  com- 
mon rights  of  men  and  of  citizens. 

The  Oath. 
3.  The  oath,  or  solemn  appeal  to  the  Deity  for  the  truth 
of  an  assertion  is  administered  by  the  national  govern- 
ment and  the  State  governments  with  the  use  of  the 
Bible,  either  in  whole  or  in  part,  in  conformity  with  old 
Christian  custom  and  the  national  reverence  for  the  Book  of 
books.  Simple  affirmation,  however,  is  justly  allowed  as  a 
substitute,'  in  justice  to  the  consciences  of  Quakers  and 
atheists,  who,  from  opposite  motives  cannot  honestly  take 
an  oath.  But  if  the  affirmation  proves  false,  it  is  punished  as 
perjury.  The  Revised  Statutes  of  New  York  provide  also, 
that  persons  believing  in  any  other  than  the  Christian  reli- 
gion shall  be  sworn  according  to  the  peculiar  ceremonies  of 
their  religion,  instead  of  the  usual  mode  of  laying  the  hand 
upon  and  kissing  the  Gospels.  Thus,  a  Jew  may  be  sworn 
on  the  Old  Testament,  with  his  head  covered,  a  Moham- 
medan, on  the  Koran,  a  Chinaman  by  breaking  a  china  sau- 
cer.    All  this  is  simply  just ;  and  Christian,  because  just. 

Official  Acts  of  the  Presidents. 

.   -4.  Our  Presidents,  in  their  inaugural  addresses,  annual  mes- 

-  gages  and  other  official  documents,  as  well  as  in  occasional 

'  It  seems  to  have  been  inserted  in  the  Federal  Constitution  without  any 
debate.  Madison,  in  the  "  Debates  of  the  Federal  Convention  "  (Elliot,  v.  498; 
simply  reports,  "  The  words  '  or  affirmation,'  were  added  after  '  oath.'  " 


T]ie  Naiio7i  and  Christianity.  63 

proclamations  of  days  of  thanksgiving  or  fasting  (as  during 
the  civil  war),  usually  recognize,  more  or  less  distinctly,  the 
dependence  of  the  nation  upon  Almighty  God  for  all  its 
blessings  and  prosperity  and  our  duty  of  gratitude — at  least 
in  such  general  terms  as  a  proper  regard  for  the  religion  of 
Jewish  and  other  citizens  who  reject  the  specific  tenets  of 
Christianity  admits.  Christian  rulers  in  Europe  seldom  go 
even  that  far  in  their  official  utterances. 

Thomas  Jefferson  is  the  only  President  who  had  constitu- 
tional scruples  to  appoint  days  of  prayer  and  fasting,  and 
left  that  to  the  executives  of  the  several  States.  He  admitted 
that  he  differed  herein  from  his  predecessors,  and  he  would  not 
prevent  his  successors  from  doing  what  is,  indeed,  not  ex- 
pressly granted,  but  still  less  forbidden  by  the  Constitution.' 

The  father  of  this  country,  who  ruled  over  the  hearts  of 
his  fellow-citizens  as  completely  as  ever  a  monarch  ruled 
over  his  subjects,  set  the  example  of  this  habitual  tribute  in 
his  first  and  in  his  last  official  addresses  to  the  people.  In 
his  first  Inaugural  Address,  delivered  April  30,  1789,  he  says  : 

"It  would  be  peculiarly  improper  to  omit,  in  this  first  official  act,  my  fer- 
vent supplications  to  that  Almighty  Being  who  rules  over  the  universe,  who 
presides  in  the  councils  of  nations,  and  whose  providential  aid  can  supply 
ever}'  human  defect,  that  His  benediction  may  consecrate  to  the  liberties  and 
happiness  of  the  people  of  the  United  States  a  government  instituted  by  them- 
selves for  these  essential  purposes,  and  may  enable  every  instrument  employed 
in  its  administration  to  execute  -(vith  success  the  functions  allotted  to  his 
charge.  In  tendering  this  homage  to  the  great  Author  of  every  public  and 
private  good,  I  assure  myself  that  it  expresses  your  sentiments  not  less  than 
my  own  ;  nor  those  of  my  fellow-citizens  at  large,  less  than  either.  No 
people  can  be  bound  to  acknowledge  the  invisible  hand  which  conducts  the 
affairs  of  men  more,  than  the  people  of  the  United  States.  Every  step  by 
which  they  have  advanced  to  the  character  of  an  independent  nation  seems  to 
have  been  distinguished  by  some  token  of  providential  agency.  .  .  .  There 
exists,  in  the  economy  of  nature,  an  indissoluble  union  between  an  honest 
and  magnanimous  policy  and  the  solid  rewards  of  public  prosperity  and 
felicity.  .  .  .  The  propitious  smiles  of  Heaven  can  never  smile  on  a  nation 
that  disregards  the  eternal  rules  of  order  and  right  whicli  Heaven  itself  has  or- 
dained."'^ 

'  See  his  letter  to  Rev.  Mr.  Millar,  in  Jefferson's  "  Writings,"  vol.  iv.  427, 
and  V.  236  sq. 

'  "  Writings  of  George  Washington,"  ed.  by  Jarcd  Sparks,  Boston,  1837,  vol. 
xii.  2  and  3. 


64  Church  and  State  in  the  United  States. 

And  in  his  Farewell  Address  (September  7,  1796),  which 
will  never  be  forgotten,  Washington  says : 

"  Of  all  the  dispositions  and  habits  which  lead  to  political  prosperity,  reli- 
gion and  morality  are  indispensable  supports.  For  in  vain  would  that  man 
claim  the  tribute  of  patriotism  who  should  labor  to  subvert  these  great  pillars  of 
human  happiness,  these  firmest  props  of  the  duties  of  men  and  citizens.  The 
mere  politician,  equally  with  the  pious  man,  ought  to  respect  and  to  cherish 
them.  A  volume  could  not  trace  all  their  connections  with  private  and  public 
felicity.  Let  it  simply  be  asked,  where  is  the  security  for  property,  for  repu- 
tation, for  life,  if  the  sense  of  religious  obligation  desert  the  oaths,  which  are 
the  insti-uments  of  investigation  in  courts  of  justice  ;  and  let  us,  with  caution, 
indulge  the  supposition,  that  morality  can  be  maintained  without  religion. 
Whatever  may  be  conceded  to  the  influence  of  refined  education  on  minds  of 
peculiar  structure,  reason  and  experience  both  forbid  us  to  expect  that  national 
morality  can  prevail  in  exclusion  of  religious  principle.  'T  is  substantially 
true,  that  virtue  or  morality  is  a  necessary  spring  of  popular  government.  The 
rule,  indeed,  extends  with  more  or  less  force  to  every  species  of  free  govern- 
ment. Who  that  is  a  sincere  friend  to  it  can  look  with  indifference  upon 
attempts  to  shake  the  foundation  of  the  fabric  ?  "  ' 

We  need  not  quote  from  the  successors  of  Washington." 
But  we  cannot  omit  one  of  the  strongest  official  testimonies 
to  religion  from  the  second  inaugural  of  President  Lincoln, 
which  is  inspired  by  a  sublime  view  of  divine  justice  and 
mercy : 

"Both  [contending  parties]  read  the  same  Bible  and  pray  to  the  same  God, 
and  each  invokes  His  aid  against  the  other.  It  may  seem  strange  that  any  men 
should  dare  to  ask  a  just  God's  assistance  in  wringing  their  bread  from  the 
sweat  of  other  men's  faces,  but  let  us  judge  not,  that  we  be  not  judged.  The 
prayer  of  both  could  not  be  answered.  That  of  neither  has  been  answered 
fully.  The  Almighty  has  His  own  purposes.  Woe  unto  the  world  because  of 
offences,  for  it  must  needs  be  that  offences  come,  but  woe  to  that  man  by  whom 
the  offence  cometh.  If  we  shall  suppose  that  American  slavery  is  one  of  these 
offences  which,  in  the  providence  of  God,  must  needs  come,  but  which  having 
continued  through  His  appointed  time,  He  now  wills  to  remove,  and  that  He 
gives  to  both  North  and  South  this  terrible  war  as  the  woe  due  to  those  by 
whom  the  offence  came,  shall  we  discern  there  any  departure  from  those 
Divine  attributes  which  the  believers  in  a  living  God  always  ascribe  to  Him  ? 
Fondly  do  we  hope,  fervently  do  we  pray,  that  this  mighty  scourge  of  war 
may    speedily    pass    away.     Yet  if  God  wills  that  it  continue  until  all  the 

'  Sparks,  xii.  227. 

*  Much  material  of  this  kind  is,  uncritically,  collected  by  B.  F.  Morris,  in 
"  Christian  Life  and  Character  of  Civil  Institutions  of  the  United  States,  de- 
veloped in  the  Official  and  Historical  Annals  of  the  Republic."  Philadelphia 
(George  W.  Childs),  1864.     (831  pages.) 


The  Nation  arid  CJiristianity.  65 

wealth  piled  by  the  bondsman's  two  hundred  and  fifty  years  of  unrequited  toil 
shall  be  sunk,  and  until  every  drop  of  blood  drawn  with  the  lash  shall  be  paid 
by  another  drawn  by  the  sword,  as  was  said  three  thousand  years  at;o,  so 
still  it  must  be  said,  that  the  judgments  of  the  Lord  are  true  and  righteous 
altogether. 

"  IVith  malice  towards  none,  wilh  charity  for  all,  with  firmness  in  the 
right  as  God  gives  us  to  see  the  right,  let  us  finish  the  work  we  are  in,  to  bind 
up  the  nation's  wounds,  to  care  for  him  who  shall  have  borne  the  battle,  and 
for  his  widow  and  his  orphans,  to  do  all  which  may  achieve  and  cherish  a  just 
and  a  lasting  peace  among  ourselves  and  with  all  nations."  ' 

This  document  is  without  a  parallel  among  state  papers. 
Lincoln  was  of  humble  origin,  defective  education,  and 
rugged  manners,  a  fair  type  of  a  self-made  Western  Ameri- 
can. In  this  second  inaugural  he  rose  above  all  political 
and  diplomatic  etiquette,  and  became,  unconsciously,  the 
prophet  of  the  deepest  religious  sentiment  of  the  nation  in 
the  darkest  hour  of  its  history.  A  few  weeks  afterwards 
he  was  assassinated,  on  Good  Friday,  April  15,  1865,  and 
took  his  place  next  to  Washington,  as  the  martyr-president, 
the  restorer  of  the  Union,  the  emancipator  of  the  slaves.  ^ 

'  See  the  whole  address  and  the  stirring  scene  connected  with  the  re-in- 
auguration in  Henry  J.  Raymond's  book,  "  The  Life  and  Public  Ser^•ices  of 
Abraham  Lincoln,"  New  York,  1865,  p.  670  j^.,  and  other  biographies. 

'  Lincoln  was  not  a  communicant  member  of  any  church,  though  he  usually 
attended  the  Presbyterian  services  at  Springfield  and  Washington.  But  he 
was  a  deeply  religious  man,  and  rose  to  the  highest  eloquence  when  under  the 
inspiration  of  a  providential  view  of  history,  such  as  appears  in  his  second  in- 
augural. A  parallel  to  it  is  his  remarkable  speech  at  the  consecration  of  the 
National  Soldiers'  Cemetery  in  Gettysburg,  Nov.  19,  1863,  which  will  be  read 
long  after  the  formal,  classical,  but  cold  oration  of  Edward  Everett  will  be 
forgotten.  "  Fourscore  and  seven  years  ago,"  he  said,  "  our  fathers  brought 
forth  upon  this  continent  a  new  nation,  conceived  in  liberty,  and  dedicated  to 
the  proposition  that  all  men  are  created  equal.  Now,  we  are  engaged  in 
a  great  civil  war,  testing  whether  that  nation,  or  any  nation  so  conceived 
and  so  dedicated,  can  long  endure.  We  are  met  on  a  great  battle-field  of  that 
war.  We  have  come  to  dedicate  a  portion  of  that  field  as  a  final  resting-place 
for  those  who  here  gave  their  lives  that  that  nation  might  live.  It  is  alto- 
gether fitting  and  proper  that  we  s'.iould  do  this.  Put  in  a  larger  sense  we  can- 
not dedicate,  we  cannot  consecrate,  we  cannot  hallow  this  ground.  The  brave 
men,  living  and  dead,  who  struggled  here,  have  consecrated  it  far  above  our 
power  to  add  or  detract.  The  world  will  little  note,  nor  long  remember,  what 
we  say  here,  but  it  can  never  forget  what  they  did  here.  It  is  for  us,  the  liv- 
ing, rather  to  be  dedicated  here  to  the  unfinished  work  which  they  who  fought 
here  have  thus  far  so  nobly  advanced.     It  is  rather  for  us  to  be  here  dedicated 


66  Church  mid  State  in  the  United  States. 

Exemption  of  CJinrcJi  Property  from   Taxation. 

5.  Our  government,  both  Federal  and  State,  respects  the 
sentiment  of  the  great  majority  of  the  people  by  various 
provisions,  which  are,  perhaps,  not  strictly  constitutional, 
though  not  anti-constitutional,  and  all  the  more  impor- 
tant as  voluntary  tributes. 

The  most  valuable  of  these  provisions  is  the  exemption 
of  church  property  from  taxation  in  the  Federal  District 
of  Columbia,  and  in  nearly  all  the  States.  In  some  States 
(Minnesota,  Kansas,  Arkansas)  this  exemption  is  secured 
by  the  constitution,  in  others  by  legislative  enactment.  No 
discrimination  is  made  between  different  creeds  and  sects. 
Jewish  synagogues  are  included  as  well  as  Roman  cathe- 
drals. The  Revised  Statutes  of  New  York  State  provide 
that  "  every  building  for  public  worship  "  shall  be  exempt 
from  taxation. 

The  exemption  is  a  great  help  to  poor  churches,  but  by 
no  means  necessary.  The  people  who  are  able  and  willing 
to  spend  large  sums  for  the  erection  of  church  buildings 
could  not  plead  inability  to  pay  the  small  sum  for  the  legal 
protection  of  their  property.  All  taxation  is  a  burden,  but 
easier  to  bear  for  corporations  than  individuals. 

The  exemption  of  property  used  for  religious  purposes 
might  be  abolished  without  detriment  to  religion,  but  it  is 
founded  in  justice  and  can  be  defended  on  the  same  ground 
as  the  exemption  of  government  buildings,  colleges,  public 
schools,  hospitals,  and  other  charitable  institutions  which 
make  no  money  and  are  intended  for  the  benefit  of  the  peo- 
ple. Besides,  churches  improve  the  morals  of  the  surround- 
ing community,  and  raise  the  taxable  value  of  property. 

The  Appointment  of  Chaplains. 

6.  Another  government  tribute  to  the  religion  of  the  people 
is  the  appointment,  at  public  expense,  of  chaplains  for  Con- 
to  the  great  task  remaining  before  us,  that  from  these  honored  dead  we 
take  increased  devotion  to  that  cause  for  which  they  gave  the  last  measure  of 
devotion  ;  that  we  here  highly  resolve  that  these  dead  shall  not  have  died  in 
vain  ;  that  this  nation,  under  God,  shall  have  a  new  birth  of  freedom,  and  that 
government  of  the  people,  by  the  people,  and  for  the  people,  shall  not  perish 
from  the  earth." 


The  Nation  and  Christianity.  6y 

gress  (one  for  the  Senate  and  one  for  the  House  of  Repre- 
sentatives), for  the  Army  and  Navy,  and  for  the  military 
and  naval  academies.  These  chaplains  are  placed  among 
the  officers  of  government  on  the  same  footing  with  other 
officers.  The  law  requires  that  they  be  regularly  ordained 
ministers  of  some  religious  denomination,  in  good  standing 
at  the  time  of  their  appointment,  and  be  recommended  by 
some  authorized  ecclesiastical  body,  or  by  not  less  than  five 
accredited  ministers  of  said  body.  Proper  facilities  must  be 
provided  by  the  military  and  naval  commanders  for  the 
holding  of  public  worship  at  least  once  on  each  Sunday. 
Chaplains  are  elected  from  all  denominations,  Roman  Cath- 
olic and  Protestant,  according  to  circumstances,  most  fre- 
quently, perhaps,  from  the  Episcopal  Church,  for  the  reason 
that  the  Book  of  Common  Prayer  makes  adequate  provi- 
sion for  stated  liturgical  services,  which  fall  in  more  easily 
with  military  discipline  than  extemporary  prayer. 

The  several  States  follow  the  precedent  of  the  United 
States,  and  appoint  chaplains  for  the  militia,  the  prisons 
and  penitentiaries,  lunatic  asylums,  and  other  public  insti- 
tutions, also  for  the  Legislature  (to  open  the  session  with 
prayer).  They  usually  require  these  chaplains  to  be  regu- 
larly ordained  ministers  of  a  Christian  denomination.  So 
does  New  York,  in  the  act  providing  for  enrolment  of 
the  militia,  passed  April  23,  1862.  The  prisons  are  provided 
with  a  Bible  in  each  room. 

This  custom  also  may  be  sufficiently  justified  by  the 
necessity  of  discipline  and  the  requirement  of  public  deco- 
rum. 

Congress  and  the  Bible. 

7.  We  may  add,  as  exceptional  instances  of  favor,  the 
patronage  extended  by  the  Continental  Congress  and  the 
United  States  Congress  to  the  authorized  Protestant  ver- 
sion and  revision  of  the  Sacred  Scriptures. 

In  England,  the  printing  of  the  authorized  version  of  the 
Scriptures  (without  comments)  is  to  this  day  a  monopoly  of 
the  university  presses  of  Oxford  and  Cambridge  (which,  it 
must  be  admitted,  issue  the  work  in  the  best  possible  man- 


68  Church  and  State  in  the  United  States. 

ner,  in  all  sizes  and  at  all  prices).  No  edition  of  the  Eng- 
lish Bible  was  printed  in  America  during  the  entire  colonial 
period  of  more  than  a  hundred  and  fifty  years.'  The  only 
Bible  which  appeared  before  the  Revolution  was  John 
Eliot's  Indian  version  (Cambridge,  Massachusetts,  i66l- 
1663),  and  Luther's  German  version  (by  Christopher  Saur, 
Germantown,  Pennsylvania,  1743,  '(i^,  '7^)- 
J  During  the  revolutionary  war,  Bibles  became  so  scarce 
^  that  Congress  was  petitioned  to  publish  the  book.  This  was 
declined,  but  authority  was  given  to  import  20,000  copies 
from  Europe.  The  first  English  Bible  appeared  in  Phila- 
delphia, 1782  (Robert  Aitken).  Congress  submitted  it  to 
an  examination  by  the  two  chaplains.  Rev.  W.  White  and 
George  DufBeld,  and  then  recommended  it  "  to  the  inhabi- 
tants of  the  United  States,"  and  authorized  the  printer  "  to 
publish  this  recommendation  in  the  manner  he  shall  think 
proper."     This  act  was  passed  Sept.  12,  1782. 

The  favorable  legislation  of  Congress  in  behalf  of  the  re- 
vised version  was  brought  about  by  the  exertions  of  Colonel 
Elliott  F.  Shepard,  a  member  of  the  Finance  Committee  of 
laymen  aiding  the  American  Committee  on  Revision.  It 
saved  them  several  thousand  dollars  by  exempting  from 
the  customary  duty  of  twenty-five  per  cent,  as  many  memo- 
rial presentation  volumes  as  they  had  promised  to  their 
patrons  for  contributions  towards  the  expenses.  This  Joint 
Resolution  of  Congress  was  approved  March  11,  1882.* 

It  is  doubtful  whether  any  European  government  would 
pass  such  an  act  in  favor  of  the  Holy  Scriptures.  Certainly 
no  Roman  Catholic  government  would  do  it.  These  acts  of 
Congress  show  that  the  dominant  form  of  American  Chris- 
tianity is  Protestant.  It  has  been  so  from  the  first  settle- 
ments, is  still,  and  is  likely  to  abide.  The  fortunes  of 
Protestantism  are  inseparably  connected  with  the  Bible,  and 
the  Bible  has  lived  long  enough  to  justify  the  belief  that  it 
will  last  as  long  as  the  world. 

'  An  edition  of  the  English  Bible  was  advertised  at  Philadelphia  Jan.  14, 
1688,  by  William  Bradford,  but  it  never  appeared,  probably  because  the  Eng- 
lish copyright  was  in  the  way.  *See  Document  IV. 


^..''--,^  TJie  Connecting  Links  between  Cluirch  and  State.        69 

THE   CONNECTING    LINKS    BETWEEN    CHURCH   AND    STATE. 

A  total  separation  of  church  and  state  Is  an  impossibility, 
unless  we  cease  to  be  a  Christian  people. 

There  are  three  interests  and  institutions  which  belong  to 
both  church  and  state,  and  must  be  maintained  and  regu- 
lated by  both.  These  are  monogamy  in  marriage,  the 
weekly  day  of  rest,  and  the  public  school.  Here  the  Amer- 
ican government  and  national  sentiment  have  so  far  decidedly 
protected  the  principles  and  institutions  of  Christianity  as 
essential  elements  in  our  conception  of  civilized  society. 

Marriage. 

Monogamy,  according  to  the  unanimous  sentiment  of  all 
Christian  nations,  is  the  only  normal  and  legitimate  form  of 
marriage.  It  has  been  maintained  by  Congress,  with  the 
approval  of  the  nation,  in  its  prohibitory  legislation  against 
the  new  Mohammedanism  in  Utah,  and  the  Supreme  Court 
of  the  United  States,  the  highest  tribunal  of  our  laws,  has 
sanctioned  the  prohibition  of  polygamy  as  constitutional. 
The  Mormons  have  to  submit,  or  to  emigrate  to  more  con- 
genial climes. 

All  the  States  uphold  monogamy  and  punish  bigamy. 
But  some  of  them,  unfortunately,  are  very  loose  on  the 
subject  of  divorce,  and  a  reform  of  legislation  in  conformity 
to  the  law  of  Christ  is  highly  necessary  for  the  safety  and 
prosperity  of  the  family.  It  is  to  the  honor  of  the  Roman 
Catholic  Church  in  our  country  that  she  upholds  the  sanctity 
of  the  marriage  tie. 

\  Sunday  Laivs. 

The  Christian  Sabbath  or  weekly  day  of  rest  is  likewise 
protected  by  legislation,  and  justly  sQ^Jj££ausc  it  has  a  civU 
gs  well  as  a  religious-sidf.  ;Vit  is  necessary  and  profitable  for 
the  body  as  well  as  for  the  soul  ;  it  is  of  special  benefit  to 
the  laboring  classes,  and  guards  them  against  the  tyranny  of 
capital.  The  Sabbath,  like  the  family,  antedates  the  Mosaic 
legislation,  and  is  founded  in  the  original  constitution 
of  man,  for  whose  temporal  and  spiritual  benefit  it  was 
instituted  by  the  God  of  creation.     The  state  has  nothing 


70  Church  and  State  in  the  United  States.  , 

to  do  with  the  rehgious  aspect  of  Sunday,  but  is  deeply 
interested  in  its  civil  aspect,  which  affects  the  whole  domes- 
tic and  social  life  of  a  people. 

The  Federal  Constitution,  in  deference  to  the  national 
sentiment,  incidentally  recognizes  Sunday  by  the  clause 
(Art.  I.,  Sect.  7) :  "  If  any  bill  shall  not  be  returned  by  the 
President  within  ten  days  {Sundays  excepted)  after  it  shall 
have  been  presented  to  him,  the  same  shall  be  a  law  in  like 
manner  as  if  he  had  signed  it,"  Congress  never  meets  on 
Sunday,  except  of  necessity,  at  the  close  of  the  short  term, 
to  complete  legislation  if  the  third  of  March  happens  to  fall 
on  a  Sunday.  The  President  is  never  inaugurated  on  a 
Sunday.  The  Supreme  Court  and  the  Federal  Courts  are 
closed  on  that  day.  And  if  the  Fourth  of  July  falls  on  a,., 
Sunday,  the  great  national  festival  is  put  off  till  Monday. 
The  Revised  Statutes  of  the  United  States  sustain  the 
observance  of  Sunday  in  four  particulars.  They  exempt  the 
cadets  at  West  Point  and  the  students  of  the  Naval  Academy 
from  study  on  Sunday ;  they  exclude  Sunday,  like  the 
Fourth  of  July  and  Christmas  Day,  from  computation 
in  certain  bankruptcy  proceedings ;  and  provide  that  army 
chaplains  shall  hold  religious  services  at  least  once  on  each 
Lord's  Day. 

During  the  civil  war,  when  the  Sunday  rest  was  very 
much  interrupted  by  the  army  movements,  the  President  of 
the  United  States  issued  the  following  important  order : 

"  Executive  Mansion,  Washington,  Nov.  15,  1S62. 
"  The  President,  Commander-in-Chief  of  the  Army  and  Navy,  desires  and 
enjoins  the  orderly  observance  of  the  Sabbath  by  the  officers  and  men  in  the 
mihtary  and  naval  service.  The  importance,  for  man  and  beast,  of  the  pre- 
scribed weekly  rest,  the  sacred  rights  of  a  Christian  people,  and  a  due  regard 
for  the  Divine  will,  demand  that  Sunday  labor  in  the  army  and  navy  be 
reduced  to  the  measure  of  strict  necessity.  The  discipline  and  character  of 
the  national  forces  should  not  suffer,  nor  the  cause  they  defend  be  imperilled, 
by  the  profanation  of  the  day  or  name  of  the  Most  High.  At  this  time  of 
public  distress,  adopting  the  words  of  Washington,  in  1776,  '  men  may  find 
enough  to  do  in  the  service  of  God  and  their  country,  without  abandoning 
themselves  to  vice  and  immorality.'  The  first  general  order  issued  by  the 
Father  of  his  Country,  after  the  Declaration  of  Independence,  indicates  the 
spirit  in  which  our  institutions  were  founded  and  should  ever  be  defended  : 


The  Connecting  Links  between  Church  and  State        j  i 

' '  '  The  General  hopes  and  trusts  that  every  officer  and  man  will  endeavor  to 
live  and  act  as  becomes  a  Christian  soldier,  defending  the  dearest  rights  and 
liberties  of  his  country.'  ABRAHAM  LINCOLN.' 

The  State  legislatures,  State  courts,  and  State  elections 
follow  the  example  of  the  general  government,  or  rather  pre- 
ceded it.  The  States  arc  older  than  the  United  States,  and 
Sunday  is  older  than  both. 

Most  of  the  States  protect  Sunday  by  special  statutes. 

These  Sunday  laws  of  the  States  are  not  positive  and 
coercive,  but  negative,  defensive,  and  protective,  and  as  such 
perfectly  constitutional,  whatever  Sabbath-breaking  infidels  | 
may^say.  The  state,  indeed,  has  no  right  to  command  the 
religious  observance  of  Sunday,  or  to  punish  anybody  for  not 
going  to  church,  as  was  done  formerly  in  some  countries  of 
Europe.  Such  coercive  legislation  would  be  unconstitutional 
and  contrary  to  religious  liberty.  The  private  observance 
and  private  non-observance  is  left  perfectly  free  to  everybody. 
TVHJihf:  '^^--Ttp  ic;  I'li  (\uVf_  bound  to  protect  the  religious  com^i 
munity  in_their  right  to  enjoy  the  rest  of  that  day,  and  shoulcfl 
forbid  such  public  desecration  as  interferes  with  this  right. 

TKe'Suprcme  Court  of  the  Stateof  New  York,  February  4, 
1861,  decided  that  'the  regulation  of  the  Christian  Sabbath 
"as  a  civ[l  and_j^jQlitical- 4-R6titutia.n  "  is  "within  the  just 
powers  of  the  civil  government,"  and  that  the  prohibition  of 
theatrical  and  dramatic  performances  on  that  day,  "  rests  on 
the  same  foundation  as  a  multitude  of  other  laws  on  our 
statute-book,  such  as  those  against  gambling,  lotteries,  keep- 
ing disorderly  houses,  polygamy,  horse-racing,  profane  curs- 
ing and  swearing,  disturbances  of  religious  meetings,  selling 
of  intoxicating  liquor  on  election  days  within  a  given  distance 
from  the  polls,  etc.  All  these  and  many  others  do,  to  some 
extent,  restrain  the  citizen  and  deprive  him  of  some  of  his 
natural  rights;  but  the  legislature  have  the  right  to  prohibit 
acts  injurious_to^'"  pnhlir  nnd  ^iibv^rciivc  of  govern mcnt^iir 
which  tend  to  the  destruction  of  the  morals  of  the  people, 
and  disturb  thepcace^.and  good  order  of  society.  It  is  ex-  y 
clusively  for  the  legislature  to  determine  what  acts  should  be 
prohibited  as  dangerous  to  the  community." ' 

'  See  the  whole  decision  in  Documcut  XI. 


^2  ChurcJi.  and  State  in  the  United  States. 

The  Penal  Code  of  New  York,  as  amended  in  1882  and 
1883,  forbids  "all  labor  on  Sunday,  excepting  works  of  ne- 
cessity or  charity,"  and  declares  "  Sabbath-breaking  a  mis- 
demeanor, punishable  by  a  fine  of  not  less  than  one  dollar  and 
not  more  than  ten  dollars,  or  by  imprisonment  in  a  jail  not 
exceeding  five  days,  or  by  both."  Among  things  expressly 
prohibited  on  Sunday,  the  Penal  Code  mentions,  "  all  shoot- 
ing, hunting,  fishing,  playing,  horse-racing,  gaming,  or  other 
public  sports,  exercises,  or  shows  " ;  "  all  trades,  manufac- 
tures, agricultural  or  mechanical  employments"  ;  "all  man- 
ner of  public  selling  or  offering  for  sale  of  any  property  " 
(except  articles  of  food  and  meals) ;  "  all  service  of  legal 
process  of  any  kind  whatever "  ;  "  all  processions  and 
parades  "  (except  funeral  processions  and  religious  proces- 
sions) ;  "  the  performance  of  any  tragedy,  comedy,  opera," 
or  any  other  dramatic  performance  (which  is  subjected  to  an 
additional  penalty  of  five  hundred  dollars).* 

The  opposition  to  the  Sunday  laws  comes  especially  from 
the  foreign  population,  who  have  grown  up  under  the  de- 
moralizing influence  of  the  continental  Sunday,  and  are  not 
yet  sufifTiciently  naturalized  to  appreciate  the  habits  of  the 
land  of  their  adoption.  But  the  more  earnest  and  religious 
portion  of  German  immigrants  are  in  hearty  sympathy  with 
the  quiet  and  order  of  the  American  Sunday  and  have 
repeatedly  expressed  it  in  public  meetings  in  New  York  and 
other  large  cities.* 

The  only  class  of  American  citizens  who  might  with  jus- 
tice complain  of  our  Sunday  laws  and  ask  protection  of  the 
last  day  of  the  week  instead  of  the  first,  are  the  Jews  and  the 

'  See  "  The  Penal  Code  of  New  York,"  Title  x.  ch.  I,  Of  Crimes  against 
Religious  Liberty  and  Conscienc>,. 

*  See  documents  of  the  New  York  Sabbath  Committee,  Nos.  xv.,  xvi., 
xxvi. ,  xxvii.,  and  the  author's  essays  on  the  Christian  Sabbath,  in  "  Christ  and 
Christianity,"  New  York  and  London,  1SS5,  pp.  213-275.  The  most  recent 
German  demonstration  in  protection  of  the  Sunday  and  Excise  laws  took  place 
November  i,  1887,  at  a  mass  meeting  in  Cooper  Institute,  New  York,  against 
the  "Personal  Liberty  Party,"  which  would  claim  the  half  of  Sunday  from 
2  P.M.  till  midnight  for  the  special  benefit  of  the  liquor  trade,  while  all  other 
trades  are  prohibited.  All  the  speeches  were  made  in  the  German  language 
and  met  with  enthusiastic  applause. 


The  Connecting  Links  between  Church  and  State.        73 

Seventh  Day  Baptists.  But  they  arc  a  small  minority,  and 
must  submit  to  the  will  of  the  majority,  as  the  government 
cannot  wisely  appoint  two  weekly  days  of  rest.  The  Re- 
vised Statutes  of  New  York,  however,  provide  that  those 
who  keep  "  the  last  day  of  the  week,  called  Saturday,  as  holy 
time,  and  do  not  labor  or  work  on  that  day,"  shall  be  ex- 
empted from  the  penalties  of  the  statute  against  labor  on  Sun- 
day, provided  only  that  their  labor  do  not  "interrupt  or  dis- 
turb other  persons  in  observing  the  first  day  of  the  week  as 
holy  time."  The  law  of  New  York  exempts  also  the  same 
persons  from  military  duty  and  jury  duty  on  Saturday. 

The  United  States  present,  in  respect  to  Sunday  legisla- 
tion and  Sunday  observance,  a  most  striking  contrast  to  the 
Continent  of  Europe,  both  Protestant  and  Roman  Catholic, 
where  Sunday  is  perverted  from  a  holy  day  of  rest  and  wor- 
ship into  a  frivolous  holiday  of  amusement  and  dissipation, 
dedicated  to  beer  gardens,  theatres,  horse-races,  and  political 
elections.  Judged  by  the  standard  of  Sunday  observance, 
America  is  the  most  Christian  country  in  the  world,  with  the 
only  .ejsX£|itiQiis  of  England  and  Scotland. 

Religion   in    Public  Schools. 

The   relation   of  state    education   to    religion    is    a    most 
important  and  most  difficult  problem,  which  will  agitate  the 
country  for  a  long  time.     It  is  increased  by  a  difference  of 
views  within  the  religious  denominations  themselves ;  while 
on  the  questions    of  monogamy  and  Sunday  they  are  sub- 
stantially agreed. 
V^TThe  Roman  Catholics,  under  the  dictation  of  the  Vatican, 
oppose  our  public  schools,  which  are   supported   by  general 
taxation,  for  the  reason  that  their  religion  is  not  taught  there, 
and  that  a  "  godless  "  education  is  worse  than  none.    They  are 
right  in  the  supreme  estimate  of  religion  as  a  factor  in  educa- 
tion, but  they  are  radically  wrong  in  identifying  the  Chris-j 
tian  religion  with  the  Roman  creed,  and  very  unjust  in  call- 
^,    ing  our  public  schools  "godless."     They  must  learn  to  ap- 
\      preciate    Protestant  Christianity,  which   has   built    up    tin's 
(.     country  and   made    it  great,  prosperous,   and    free.     Their 


c 


74  Church  and  State  in  the  United  States. 

Church  enjoys  greater  liberty  in  the  United  States  than  in 
Italy  or  Spain  or  Austria  or  France  or  Mexico,  and  for  this 
they  should  at  least  be  grateful.  They  will  never  succeed 
in  overthrowing  the  public  school  system,  nor  in  securing  a 
division  of  the  school  funds  for  sectarian  purposes.  They 
have  a  remedy  in  private  and  parochial  schools,  wfiich  they 
can  multiply  without  let  or  hindrance.  There  is  no  compul- 
sory attendance  on  public  schools  in  any  of  our  States.  The 
only  point  of  reasonable  complaint  from  Catholics  is  that 
they  are  taxed  for  the  support  of  public  schools  which  they 
condemn.  Strict  justice  would  exempt  them  from  the  school 
tax.  But  the  principal  tax-payers  are  wealthy  Protestants, 
who,  for  various  reasons,  prefer  to  educate  their  children  in 
private  schools  at  their  own  expense.  The  right  of  minori- 
ties should  be  protected  by  all  means  save  the  destruction 
of  the  rights  pf  the  majority,  which  must  rule  in  a  republican 
country.  "The  Roman  Catholics  would  act  more  wisely  and 
patriotically  by  uniting  with  the  religious  portion  of  the 
Protestant  community  in  every  effort  to  improve  the  moral 
character  of  the  public  schools.  They  may  be  sure  of  a 
cordial  disposition  to  meet  them  in  every  just  and  reasona- 
ble demand.  Protestants  are  just  as  much  concerned  for  the 
religious  and  moral  training  of  their  children  as  they. 

The  public  school  is  and  ever  will  be  an  American  institu- 
tion from  the  Atlantic  to  the  Pacific.  It  dates  from  early 
colonial  days  in  New  England,  and  has  always  been,  next  to 
the  church,  the  chief  nursery  of  popular  intelligence,  virtue, 
and  piety.  The  Continental  Congress,  in  the  ordinance  of 
1787  (Article  III.),  enjoined  it  upon  the  territory  northwest 
of  the  Ohio  River,  that  "  schools  and  the  means  of  education 
shall  forever  be  encouraged,"  because  "  religion,  morality, 
and  knowledge  are  necessary  to  good  government  and  the 
happiness  of  mankind."  The  public  school  system  grows 
and  aims  higher  every  year.  It  is  not  satisfied  with  ele- 
mentary instruction,  but  aims  at  a  full  college  and  university 
education,  at  least  in  the  West,  where  large  landed  endow- 
ments come  to  its  aid.  The  state  has  the  right  and  the 
duty  to  educate  its  citizens  for  useful  citizenship,  and  should 


The  Connecting  Links  between  Chnrch  and  State.        75 

give  the  poorest  and  humblest  the  benefit  of  a  sufficient 
training  for  that  purpose.  A  democratic  republic  based  • 
upon  universal  suffrage  depends  for  its  safety  and  prosperity 
upon  the  intelligence  and  virtue  of  the  people.  But  virtue 
is  based  on  religion,  and  the  obligations  of  man  to  man  rest 
upon  the  obligations  of  man  to  his  Maker  and  Preserver. 
Intellectual  training  without  moral  training  is  dangerous, 
and  moral  training  without  religion  lacks  the  strongest  in- 
centive which  appeals  to  the  highest  motives,  and  quickens 
and  energizes  all  the  lower  motives.  Who  can  measure  the 
influence  of  the  single  idea  of  an  omniscient  and  omnij)resent 
God  who  reads  our  thoughts  afar  off  and  who  will  judge  all 
our  deeds?  The  example  of  Christ  is  a  more  effectual 
teacher  and  reformer  than  all  the  moral  philosophies,  ancient 
and  modern. 

-  The  state  recognizes  the  importance  of  religion  by  allow- 
ing the  reading  of  the  Bible,  the  singing  of  a  hymn,  and 
the  recital  of  the  Lord's  Prayer,  or  some  other  prayer,  as 
opening  exercises  of  the  school.  I  am  informed  by  com- 
petent authority  that  at  least  four  fifths  of  tlie  public 
schools  in  the  United  States  observe  this  custom.'  j  Most 
of  the  school  teachers,  especially  the  ladies,  are  membens 
of  evangelical  churches,  and  commend  religion  by  their 
spirit  and  example.  To  call  such  schools  "  godless  "  is  sim- 
ply a  slander. 

Some  schools  exclude  the  Bible  to  please  the  Roman 
Catholics,  who  oppose  every  Protestant  version,  and  the 
Jews  and  infidels  who  oppose  Christianity  in  any  form. 
Other  schools  have  found  it  necessary  to  reintroduce  reli- 
gious exercises  for  the    maintenance    of    proper  discipline. 

'  E.  E.  White,  LL.D.,  Superintendent  of  Public  Schools  in  Cincinnati,  in 
his  paper  read  before  the  National  Educational  Association  in  Topeka,  Kan- 
sas, July  15,  1886,  says  (p.  lo) :  "  The  great  majority  of  American  schools  are 
religious  without  being  sectarian  ;  and  it  is  high  time  that  this  fact  were  more 
universally  recognized.  It  is  doubtless  true  that  the  most  impressive  forms 
of  presenting  religious  sanctions  to  the  mind  and  heart  of  the  young  arc 
prayer,  silent  or  spoken,  and  the  reverent  reading  of  the  Bible,  especially 
those  portions  that  present  human  duty  in  its  relations  to  the  Divine  Will — 
forms  still  permitted  and  widely  used  in  four  fifths  of  the  American  schools." 


76  Church  and  State  in  the  United  States. 

The  Catholics  certainly  have  a  right  to  demand  the  Douay 
version  as  a  substitute  for  that  of  King  James,  and  both 
might  be  read,  the  one  to  the  Catholic,  the  other  to  the 
Protestant  pupils ;  but  they  are  at  heart  opposed  to  the 
free  and  independent  atmosphere  of  thought  which  pre- 
vails in  the  schools  of  a  Protestant  community,  and  which 
is  dangerous  to  the  principles  of  authority  and  absolute 
obedience  to  the  priesthood.  It  is  vain,  therefore,  to  ex- 
pect to  satisfy  them  by  the  exclusion  of  the  Bible  from 
the  public  school,  which  is  advocated  by  many  Protestants 
as  a  peace  measure.  It  is  better  to  hold  on  to  the  time- 
honored  custom  of  holding  up  before  the  rising  genera- 
tion day  by  day  a  short  and  suitable  lesson  from  the  Book 
of  books,  no  matter  in  what  version.  The  Psalms  con- 
tain the  sublimest  lyrical  poetry ;  the  Lord's  Prayer  is  the 
best  of  all  prayers :  the  Sermon  on  the  Mount  is  more 
popular  and  beautiful  than  any  moral  essay ;  and  the  thir- 
teenth chapter  of  First  Corinthians  is  the  most  effective 
sermon  on  charity.  A  competent  committee  of  clergymen 
and  laymen  of  all  denominations  could  make  a  judicious 
selection  which  would  satisfy  every  reasonable  demand. 
With  unreason  even  the  gods  fight  in  vain. 

The  reading  of  brief  Bible  lessons,  with  prayer  and  sing- 
ing, is  a  devotional  exercise  rather  than  religious  instruction, 
but  it  is  all  that  can  be  expected  from  the  state,  which  dare 
not  intermeddle  with  the  differences  of  belief.  Positive 
religious  instruction  is  the  duty  of  the  family,  and  the 
churchTwhich  has  the  commission  to  teach  all  nations  the 
way  of  life.  The  state  cannot  be  safely  intrusted  with  this 
duty.  It  might  teach  rationalism,  as  is  actually  done  in 
many  public  schools  and  universities  of  Germany,  Holland, 
and  Switzerland. 

But  the  state  may  allow  the  different  denominations  to 
monopolize  certain  school  hours  in  the  school  building  for 
religious  instruction.  In  this  way  the  problem  of  united 
secular  and  separate  religious  education  could  be  solved,  at 
least  to  the  reasonable  satisfaction  of  the  great  majority. 
Possibly  the  more  liberal  portion  of  our  Roman  Catholic 


T]ie  Connecting  Links  between  Church  and  State.        yj 

fellow-citizens  might  agree  to  such  a  compromise.  In  com- 
munities which  arc  sufficiently  homogeneous,  one  teacher 
would  answer ;  in  others,  two  or  more  might  be  chosen,  and 
the  children  divided  into  classes  according  to  the  will  of  the 
parents  or  guardians. 

The  state  is  undoubtedly  competent  to  give  instruction  in 
all  elementary  and  secular  or  neutral  branches  of  learning, 
such  as  reading  and  writing,  mathematics,  languages,  geog- 
raphy, chemistr}',  natural  science,  logic,  rhetoric,  medicine, 
law,  etc.  The  diffinilfy  begins  i'''JiJ^<^2''y_-'^'2,[L^^^'"  moral  sci- 
ences  which  deal  with  character,  touch. upjan  rehgious  ground,, 
and  enjoin  the  eternal  principles  of  duty.  A  history  which/ 
would  ignore  God,  Christ,  the  Bible,  the  Church,  the  Refor-j 
mation,  and  the  faith  of  the  first  settlers  of  this  country, 
would  be  nothing  but  a  ghastly  skeleton  of  dry  bone.§^  An 
education  which  ignores  the  greatest  characters  and  events 
and  the  most  sacred  interests  in  human  life  must  breed  reli- 
gious indifference,  infidelity,  and  immoralit}-. 

But  the  people  will  not  allow  this  as  long  as  they  remain 
religious  and  Christian.  Parents  will  not  send  their  children 
to  godless  schools.  They  have  the  power  in  their  own 
hands  ;  they  appoint  the  school  boards,  and  through  them 
the  teachers.  This  is  a  government  "  of  the  people,  by  the 
people,  and  for  the  people."  Rppnblimn  institutions  are 
a  blessing  or  a  curse  according  to  the  character  of  those  whq_ 
administeTtHem.  And  soTt  iswith  our  public  schools.  All 
depends  at  last  upon  competent  and  faithful  teachers.  J£the 
teachers  fear  God  and  love  r|g^liteousness,  they  will  inspire 
their  pupils  with  the  same  spirit  ;  if  they  do  not,  they  will 
raise  an  infidel  generation,  notwithstanding  the  reading  of 
the  Bible  and  the  teaching  of  the  Catechism.  It  is  in  the 
interest  of  the  educational  institutions  of  tlic  several  States, 
and  indispensable  to  their  well-being,  that  they  should  main- 
tain a  friendly  relation  to  the  churches  and  the  Christian 
religion,  which  is  the  best  educator  and  civilizcr  of  any  peo- 
ple. 

Whatever  defects  there  are  in  our  public  schools,  they  can 
be  supplied  by  the  Sunday-schools,  whi^  are   multiplying 


78  Church  and  State  in  the  United  States. 

and  increasing  in  importance  with  the  growth  of  the  country  ; 
by  catechetical  instruction  of  the  pastor,  which  ought  to  be 
revived  as  a  special  preparation  for  church  membership  ;  and 
by  private  schools,  academies,  and  denominational  colleges 
and  universities.  The  church  is  perfectly  free  and  untram- 
melled in  the  vast  work  of  education,  and  this  is  all  she  can 
expect.  If  she  does  her  full  duty,  America  will  soon  surpass 
every  other  country  in  general  intelligence,  knowledge,  and 
culture.  Here  is  an  opportunity  for  every  man  to  become  a 
gentleman,  for  every  woman  to  become  a  lady,  and  for  all  to 
become  good  Christians.  This  is  the  ideal,  but  when  will  it 
be  realized? 

EFFECTS   OF   SEPARATION   OF   CHURCH   AND   STATE. 

Whatever  may  be  the  merits  of  the  theory  of  the  Ameri- 
can system,  it  has  worked  well  in  practice.  It  has  stood  the 
test  of  experience.  It  has  the  advantages  of  the  union  of 
church  and  state  without  its  disadvantages.  It  secures  all 
the  rights  of  the  church  without  the  sacrifice  of  liberty  and 
independence,  which  are  worth  more  than  endowments. 
Not  that  endowments  are  to  be  despised,  or  are  inconsistent 
with  a  free  church.  They  are  rapidly  increasing  in  Amer- 
ica by  more  than  princely  donations  and  the  rise  of  real 
estate.  Literary  and  theological  institutions  ought  to  be 
liberally  endowed,  and  every  congregation  ought  to  have  a 
church  building  and  a  parsonage  free  of  debt.  The  Trinity 
Episcopal  Church,  and  the  Collegiate  Reformed  Dutch 
Church,  both  of  New  York  City,  are  enabled  by  their  enor- 
mous wealth  to  aid  many  charities  and  missions.  Yet 
experience  teaches  that  endowed  churches  are  generally  less 
liberal  than  churches  which  depend  upon  the  constant  flow 
of  voluntary  contributions. 

The  necessary  consequence  of  the  separation  of  church 
and  state  is  the  voluntary  principle  of  self-support  and  self-:^ 
government.  Christianity  is  thrown  upon  its  own  resources. 
It  has  abundantly  shown  its  ability  to  maintain  itself  without 
the  secular  arm  of  the  government.  It  did  so  even  during 
the  first  three  centuries  under  a  hostile  and  persecuting  gov- 


Effects  of  Scparatio7i  of  Church  and  State.  79 

ernment,  when  every  congregation  was  a  benevolent  society, 
and  provided  for  the  poor,  the  sick,  tiic  stranger,  and  the 
prisoner,  to  the  astonishment  of  the  heathen, 

i».  The  voluntary  system  develops  individual  activity  and 
liberality  in  the  support  of  religion  ;  while  the  state-church 
system  has  the  opposite  tendency.  •  Where  the  treasure  is, 
says  Christ,  there  is  the  heart  also.  Liberality,  like  every 
virtue,  grows  with  exercise  and  gradually  becomes  a  second 
nature.  The  state  gives  to  the  church  as  little  as  possible, 
and  has  always  more  money  for  the  army  and  navy  than  for 
religion  and  education. 

In  large  cities  on  the  Continent  there  are  parishes  of  fifty 
thousand  souls  with  a  single  pastor;  while  in  the  United 
States  there  is  on  an  average  one  pastor  to  every  thousand 
members.  It  seems  incredible  that  Berlin,  the  metropolis 
of  the  German  Empire  and  of  Protestant  theology,  should 
in  18S7  have  no  more  than  about  sixty  church  edifices  for  a 
population  of  twelve  hundred  thousand  ;  while  the  city  of 
New  York  counts  five  times  as  many  churches  for  the  same 
number  of  population,  and  in  connection  with  tiicm  over 
four  hundred  Sunday-schools.'  No  wonder  that  only  about 
two  per  cent,  of  the  inhabitants  of  Berlin  arc  said  to  attend 
church,  though  nearly  all  are  baptized  and  confirmed.  And  ' 
yet  there  are  as  good  Christians  in  that  city,  from  the  highest 
to  the  lowest  classes,  as  anywhere  in  the  world. 

The  Free  churches  in  Switzerland  and  Scotland  and  the 
Dissenting  churches  in  England  teach  the  same  lesson,  and 
by  their  liberality  put  the  established  churches  to  shame. 

The  progress  of  the  United  States  is  the  marvel  of  modern 
history,  in  religion,  no  less  than  in  population,  commerce, 
wealth,  and  general  civilization.  Though  not  much  older 
than  a  century,  they  have  in  this  }'ear  18S7,  with  a  popula- 

'  From  "  Trow's  New  York  City  Directory  "  for  1S87  we  learn  that  the  number 
of  churches  and  chapels  in  New  York  is  431.  This  aggregate  does  not  include 
the  Sunday-schools  and  small  missions  in  all  sections  of  the  city.  .Vmong 
these  churches  74  arc  Protestant  Episcopal,  66  Roman  Catholic,  66  Methodist 
Episcopal,  59  Presbyterian,  41  Baptist,  23  Dutch  Reformed,  7  Congregational, 
20  Lutheran,  32  Synagogues,  and  43  of  other  bodies,  of  small  size  or  of  inde- 
pendent character. 


8o  Church  and  State  in  the  United  States. 

tion  of  about  sixty  millions,  no  less  than  132,434  churches  or 
congregations,  91,911  ministers  of  the  gospel,  and  19,018,917 
communicants.  Church  property,  on  an  average,  has  doubled 
every  decade;  it  amounted  in  1870  to  $354,483,581,  and  if 
it  goes  on  increasing  at  the  same  rate,  it  will  reach  in  1900 
the  sum  of  nearly  three  billions.  The  number  of  theological 
schools  exceeds  one  hundred  and  fifty,  and  a  few  of  them  are 
not  far  behind  the  theological  faculties  of  the  twenty-two 
universities  of  Germany. 

The  enormous  immigration  must,  of  course,  be  taken  into 
account  in  the  growth  of  the  country  ;  but  the  modern  im- 
migration is  not  prompted  by  religious  motives,  as  was  the 
immigration  in  the  colonial  period,  and  contributes  less  to 
our  religious  progress,  than  to  our  religious  destitution. 
Even  the  better  class  of  immigrants,  with  many  noble  excep- 
tions, are  behind  the  native  Americans  in  the  support  of 
religion,  not  from  fault  of  nature  or  disposition,  but  from 
want  of  practice  and  from  the  bad  effects  of  the  state-church 
system  of  providing,"  under  which  they  have  been  brought  up. 

2.  The  necessity  of  self-support  of  the  church  at  home 
does  not  diminish  but  increase  the  active  zeal  for  the  spread 
of  the  gospel  abroad.  Liberality  in  one  direction  creates 
liberality  in  every  other  direction.  Those  who  give  most  for 
one  good  cause,  generally  give  most  for  other  good  causes. 

All  foreign  missionary  operations  of  Christendom  rest  on 
the  voluntary  principle.  A  state-church,  as  such,  has  no  in- 
terest and  care  for  religion  beyond  its  geographical  bound- 
aries, and  leaves  the  conversion  of  the  heathen  to  voluntary 
societies.  Free  churches,  if  they  have  the  proper  spirit, 
carry  on  missions  in  their  corporate  capacity,  and  expect 
every  congregation  and  member  to  contribute  according  to 
ability.  Each  denomination  has  its  own  foreign  and  domes- 
tic missionary  society.  There  are  flourishing  American 
missions  in  India,  China,  Japan,  South  Africa,  Syria,  Turkey, 
and  the  new  settlements  of  the  West  are  supplied  with 
ministers  from  the  East.  In  Europe  the  missionaries  have 
to  be  trained  in   special  institutions  (as  at  Basel,  Barmen, 

'  The  staatskirchliche  Versorgungssystem,  as  the  Germans  would  call  it. 


Effects  of  Separation  of  Church  and  State.  8 1 

Berlin),  as  the  universities  furnish  very  few  missionaries ;  while 
the  theological  seminaries  of  the  United  States  send  annually 
a  number  of  their  best  graduates  to  destitute  fields  at  home 
and  abroad. 

3.  The  voluntary  system  develops  the  self-governing 
power  of  the  church  in  Tne~Taity,  and  trains  elders,  deacons, 
church  wardens,  treasurers,  debaters,  and  all  sorts  of  helpers 
in  the  government  and  administration  of  ecclesiastical 
affairs.  In  state-churches  the  laity  are  passive,  except  as 
far  as  they  are  engaged  in  missionary,  charitable,  and  other 
voluntary  societies  and  enterprises. 

4.  The  free-church  system  secures  the  exercise  of  church 
discrpline,  which  is  almost  impossible  in  state-churches,  and 
provides  a  purer  and  more  efficient  ministry.  In  state- 
churches  tlie_studyof^theology  is  pursued  like  any  other 
profession,  and  the  state  looks  only  at  theoretical  qualifica- 
tions. Teachers  of  theology  in  continental  universities  are 
appointed  by  the  government  for  the  promotion  of  theology 
as  a  science,  without  regard  to  orthodoxy  and  religious 
character,  unless  the  minister  of  public  worship  and  instruc- 
tion or  the  sovereign  happens  to  be  concerned  for  these  qual- 
ifications. A  professor  may  reject  or  doubt  half  of  the  canon  i 
of  the  Bible,  deny  its  inspiration,  the  holy  Trinity,  the  di-  \ 
vinity  of  Christ  and  the  Holy  Spirit,  without  losing  his  ' 
place.  The  church  may  protest,  but  her  protest  is  in  vain. 
In  America,  where  the  church  appoints  and  supports  her 
own  officers,  such  anomalies  are  impossible,  or,  at  all  events, 
only  exceptional.  No  one  is  expected  to  enter  the  ministry 
or  to  teach  theology  who  is  not  prompted  by  high  spiritual 
motives,  and  in  cordial  sympathy  with  the  creed  of  his  de- 
nomination. Ilcnce  the  Protestant  churches  in  America  are 
more  orthodox  and  active  than  in  Europe.  Theology,  as  a 
science,  is  not  cultivated  to  such  an  extent  as  in  Germany, 
but  it  moves  more  in  harmony  with  the  practical  life  and 
wants  of  the  churches  ;  every  lecture  is  opened  with  prayer, 
and  the  day  closes  with  devotional  exercises  of  the  professors 
and  students. 

5.  The  inevitable  division  of  the  Church  into  an  indefinite 


y 


82  ChurcJi,  and  State  in  the  United  States. 

number  of  denominations  and  sects  is  made  the  strongest 
objection  to  the  free-church  system  by  the  advocates  of 
ecclesiastical  establishments.  But  free  separation  is  more 
honest  than  forced  union.  Nearly  all  our  divisions  are  in- 
herited from  Europe ;  the  only  difference  is  that  there  they 
exist  in  the  form  of  sects  and  parties,  here  on  a  basis  of  legal 
equality.  In  England  there  are  fully  as  many  denomina- 
tions as  here.'  The  leading  denominations  of  the  United 
States  can  be  reduced  to  seven  families,  the  rest  are  subor- 
dinate branches.  If  church  and  state  were  separated  on  the 
Continent,  the  theological  schools  which  now  antagonize  each 
other  under  the  same  state-church  roof  would  organize 
themselves  into  separate  denominations. 

The  tendency  to  division  and  split  is  inherent  in  Protes- 
tantism, and  it  must  be  allowed  free  scope  until  every  legiti- 
mate type  of  Christianity  is  developed  and  matured.     The 
work  of  history  is  not  in  vain.     But  division  is  only  a  means 
to  a  higher  unity  than  the  world  has  yet  seen.     The  ma- 
jestic and  rock-built  cathedral  of  the  papacy  represents  au- 
thority without  freedom,  and  unity  without  variety.     True 
unity  must  rest  on  liberty  and  include  the  greatest  variety. 
There  is  more  real  union  and  friendship  between  the  different 
denominations  in  America  than  there  is  between  the  different 
theological   schools   and   parties   in    the   state-churches   of 
Europe.     The  dangers  of  liberty  are  great,  but  no  greater  than   ,; 
the  dangers  of  authority,  which  may  lead  to  grinding  and  de-  / 
grading  despotism.     America  has  cast  her  lot  with  the  cause  - 
of  freedom,  and  must  sink  or  swim,  perish  or  survive  with  it. 
The_grogress  of  history_is__a_£rogress  of  freedom.     Let  us| 
stand   fast  in  the  freedom  wherewith  Christ  has  made  us 
free.     (Gal.  v.,  i.)     We  must  believe  in  the  Holy  Spirit,  the 
author  and  giver  of  life,  who  will  never  forsake  the  church, 
but  lead  her  higher  and  higher  even  unto  perfection. 

'  Or  even  more,  if  we  are  to  credit  "  The  Statesman's  Year-Book  for  1887" 
(London,  18S7),  which  says  (p.  218)  :  "  There  are  altogether  180  religious  de- 
nominations in  Great  Britain,  the  names  of  which  have  been  given  in  to  the 
Registrar-General  of  Births,  Deaths,  and  Marriages."  This  incredible  num- 
ber must  include  all  sorts  of  societies  which  no  sensible  man  would  call  a 
church  or  a  sect. 


Religious  Liberty  in  Modern  Europe.  83 

God  has  great  surprises  in  store.  The  Reformation  is  not 
by  any  means  the  last  word  He  has  spoken.  We  may  confi- 
dently look  and  hope  for  something  better  than  Romanism 
and  Protestantism.  And  free  America,  where  all  the  churches 
are  commingling  and  rivalling  with  each  other,  may  become 
the  chief  theatre  of  such  a  reunion  of  Christendom'  as  will 
preserve  every  truly  Christian  and  valuable  element  in  the 
various  types  which  it  has  assumed  in  the  course  of  ages, 
and  make  them  more  effective  than  they  were  in  their  sepa- 
ration and  antagonism.  The  denominational  discords  will 
be  solved  at  last  in  the  concord  of  Christ,  the  Lord  and 
Saviour  of  all  that  love,  worship,  and  follow  Him.  There 
is  no  room  for  fear  and  discouragement  under  the  banner  of 
the  Cross  which  still  bears  the   device :    Tovroo  vixa.^ 

RELIGIOUS   LIBERTY   IN    MODERN   EUROPE. 

In  conclusion  we  must  briefly  survey  the  influence  of  the 
American  system  upon  foreign  countries  and  churches. 

Within  the  present  generation  the  principle  of  religious 
liberty  and  equality,  with  a  corresponding  relaxation  of  the 
bond  of  union  of  church  and  state,  has  made  steady  and  ir- 
resistible progress  among  the  leading  nations  of  Europe,  and 
has  been  embodied  more  or  less  clearly  in  written  constitu- 
tions. The  French  revolution  of  1830,  the  more  extensive 
revolutions  of  1848,  and  the  great  events  of  1866  and  1870 
have  broken  down  the  bulwarks  of  intolerance,  and  prepared 
the  way  for  constitutional  changes. 

The  successful  working  of  the  principle  of  religious  free- 
dom in  the  United  States  has  stimulated  this  progress  with- 
out any  ofificial  interference.  All  advocates  of  the  voluntary 
principle  and  of  a  separation  of  church  and  state  in  Europe 
point  to  the  example  of  this  country  as  their  strongest  prac- 
tical argument. 

The  separation  of  church  and  state  is  a  far  more  difficult 
task  in  Europe  than  it  was  in  America.  There  the  union  of 
the  two  powers  is  interwoven  with  the  history  of  the  past  and 
with  every  fibre   of  national  life.     It  has  still  great  advan- 

'  I/oc  si^tto  tince. 


84  Church  and  State  in  the  United  States. 

tages :  it  secures  an  orderly  administration,  and  a  comfortable 
support  to  the  clergy  ;  it  gives  the  church  access  to  the  whole 
population  and  brings  all  the  young  under  religious  instruc- 
tion. In  most  countries  of  Europe,  Catholic  as  well  as  Prot- 
estant, the  state  has  secularized  the  landed  and  other  pos- 
sessions of  the  church,  and  in  supporting  the  clergy,  it  only 
pays  the  interest  of  a  debt  assumed.  The  state  is  not  likely 
to  surrender  the  church  property,  and  to  lose  its  power  over 
the  clergy  by  making  it  independent ;  while  the  clergy  is  not 
disposed  to  give  up  its  claim  and  to  entrust  itself  to  the 
good-will  of  the  congregations  for  its  daily  bread.  The 
United  States  never  possessed  any  church  property,  and 
never  meddled  with  ecclesiastical  affairs  except  to  protect 
them  by  law. 

Nevertheless  the  basis  on  which  the  union  of  church  and 
state  is  founded,  namely  the  identity  of  the  community  of 
citizens  and  the  community  of  Christians  of  one  creed,  no 
longer  exists,  and  acts  of  uniformity  in  religion  have  become 
an  impossibility.  The  state  has  sacred  obligations  to  all  its 
citizens,  and  dare  not  promote  a  creed  at  the  expense  of 
justice  and  humanity.  The  mixed  character  of  the  popula- 
tion as  regards  their  religious  convictions  peremptorily  de- 
mands concessions  to  dissenters,  and  every  such  concession 
or  act  of  toleration  is  a  weakening  of  the  bond  of  union  be- 
tween church  and  state,  until  at  last  a  separation  becomes 
inevitable.  This  at  least  is  the  tendency  of  things  in  modern 
Europe.  There  are  few  intelligent  advocates  of  state- 
churchism,  at  least  in  Protestant  countries,  who  will  not  con- 
cede the  necessity  of  toleration  as  a  simple  act  of  justice,  or 
even  go  further  and  admit  the  principle  of  free-churchism, 
namely  that  the  profession  of  religion  ought  to  be  voluntary, 
and  that  the  church  ought  to  support  and  to  govern  herself. 
The  internal  controversies  of  Christendom  should  be  fought 
out  on  the  basis  of  freedom  without  fear  and  favor  of  the 
secular  power. 

Great  Britaiji. 

England  is  the  mother  of  the  United  States,  though  she 
acted  more  like  a  step-mother  in  colonial  days.     Our  Ian- 


Religious  Liberty  in  Modern  Europe.  85 

guage,  laws,  customs,  and  religion,  and  our  conception  of 
liberty  and  self-government,  are  derived  from  her.  Without 
the  Magna  Charta,  the  Petition  of  Right,  and  the  Bill  of 
Rights — the  three  documents  which  Lord  Chatham  called 
the  Bible  of  the  English  Constitution, — there  would  be  no 
American  Constitution,  which  embodies  their  most  valuable 
guarantees  of  personal  and  national  freedom.' 

The  era  of  religious  uniformity  and  consequent  persecution, 
which  sent  so  many  of  England's  best  citizens  to  the  wild 
woods  of  North  America,  closed  with  the  expulsion  of  the 
tyrannical  and  treacherous  dynasty  of  the  Stuarts  and  the 
Act  of  Toleration  of  1689.  The  benefit  of  this  act  was  sub- 
sequently enlarged,  and  extended  to  Unitarians  (18 13),  to 
Roman  Catholics  (1829),  and  at  last  to  the  Jews  (1858),  all 
of  whom  may  now  be  represented  in  Parliament.  Practically 
there  is  as  much  civil  and  religious  liberty  and  as  much  reli- 
gious activity  in  England  and  Scotland  as  in  the  United 
States,  and  the  voluntary  principle,  owing  in  part  to  the 
good  example  set  by  dissenters,  has  made  wonderful  prog- 
ress within  the  established  church  itself. 

But  nominally  and  legally  the  Queen  is  still  the  supreme 
governor,  both  of  the  Episcopalian  Church  of  England,  and 
of  the  Presbyterian  Church  of  Scotland;  and  as  Empress  of 
India  she  is  bound  to  protect  the  Hindoo  religion  of  her  sub- 
jects. Presbyterians  are  dissenters  in  England  ;  while  Epis- 
copalians are  dissenters  in  Scotland.  The  Queen  changes 
her  churchmanship  and  dissentership  twice  every  year,  as 
she  passes  from  Windsor  to  Balmoral  and  back  again      This 

'  Francis  Lieber  (  "  On  Civil  Liberty  and  Self-Government,"  p.  260) 
says  :  "  American  liberty  belongs  to  the  great  division  of  Anglican  liberty  [as 
distinguished  from  Gallican  liberty].  It  is  founded  upon  the  checks,  guarantees, 
and  self-government  of  the  Anglican  race.  The  trial  by  jur)',  the  representa- 
tive government,  the  common  law,  self-taxation,  the  supremacy  of  the  law, 
publicity,  the  submission  of  the  army  to  tlie  legislature  .  .  .  form  part  and 
parcel  of  our  liberty.  There  are,  however,  features  and  guarantees  wliich  arc 
peculiar  to  ourselves,  and  which,  therefore,  we  may  say  constitute  American 
liberty.  They  may  be  summed  up,  j^erhajis,  under  these  heads  :  Republican 
federalism,  strict  separation  of  the  state  from  the  church,  greater  e(iuality  and 
acknowledgment  of  abstract  rights  in  the  citizen,  and  a  more  popular  or  demo- 
cratic cast  of  the  whole  polity." 


86  Church  and  State  in  the  United  States. 

double  headship — leaving  out  the  sex — is  a  strange  anomaly, 
and  without  a  shadow  of  precedent  in  the  Bible  or  antiquity. 
It  dates  from  Henry  VIII.  and  Queen  Elizabeth.  It  cannot 
last  much  longer.  The  dissenters  are  uneasy  and  discon- 
tented with  their  status  of  legal  and  social  inferiority,  and  a 
large  class  of  Episcopalians  feel  equally  discontented  with 
the  subserviency  of  their  own  church  to  the  royal  supremacy 
and  to  a  Parliament  composed  no  more  exclusively  of 
churchmen,  but  also  of  dissenters,  Jews,  and  Gentiles.  In 
England  and  Wales  the  dissenters  numbered  in  1883  nearly 
one  half  of  the  population  (12,500,000  to  13,500,000  Episco- 
palians), and  in  Scotland,  the  Free  Church  and  United  Pres- 
byterian Church,  even  without  the  non-Presbyterian  com- 
munions, are  nearly  as  strong  as  the  established  Kirk. 

In  Ireland  the  Church  of  England  was  disestablished  in 
1869  under  the  leadership  of  a  high-church  Episcopalian 
prime  minister,  who  in  his  youth  had  written  an  elaborate 
defence  of  the  union  of  church  and  state.*  Mr.  Gladstone 
has  not  changed  his  religion,  but  he  has  changed  his  poli- 
tics. After  years  of  practical  experience  in  government,  he 
found  it  impossible  to  maintain  his  views  in  the  mixed  char- 
acter of  the  modern  state,  without  doing  injustice  to  a  large 
portion  of  the  people.  At  the  union  of  England  and  Ire- 
land in  1801,  it  was  enacted  that  the  Churches  of  England 
and  Ireland  were  forever  to  form  one  Protestant  Episcopal- 
ian Church  ;  and  this  was  to  be  a  fundamental  part  of  the 
union  between  the  two  countries.  The  Irish  were  forced  to 
support  a  religion  which  was  professed  only  by  a  small  mi- 
nority, and  which  was  hated  as  heretical  and  tyrannical  by 
three  fourths  of  the  population. 

'  William  Ewart  Gladstone  :  "  The  State  in  its  Relations  with  the  Church." 
4th  ed.  London,  1841,  2  vols.  The  famous  critique  of  Macaulay  in  the  "  Ed- 
inburgh Review  "  for  April,  1839,  is  very  respectful  to  the  author,  but  very  se- 
vere on  his  theory,  which,  he  says,  ought  to  be  built  on  "buttresses  of  ada- 
mant," but  is  "  made  out  of  flimsy  materials  fit  only  for  perorations."  For  a 
more  recent  defence  and  exposition  of  Anglican  state-churchism,  see  Roundell, 
Earl  of  Selborne  :  "A  Defence  of  the  Church  of  England  against  Disestab- 
lishment "  (London,  1886)  ;  also  Hon.  Arthur  Elliot  :  "  The  State  and  the 
Church  "  (London,  1882). 


Religious  Liberty  in  Modern  Europe.  8/ 

The  wonder  is,  that  such  an  anomaly  could  continue  so 
long  and  be  defended  by  good  men  misguided  by  hereditary 
prejudice.  The  disestabhshment  and  disendowment  of  the 
Anglican  Church  in  Ireland,  accompanied  by  proper  compen- 
sation or  commutation,  was  an  act  of  simple  justice,  and  has 
resulted  in  giving  greater  efficiency  to  the  Episcopal  and 
other  Protestant  bodies. 

Since  that  time  all  Christian  denominations  in  Ireland  are 
placed  on  a  footing  of  legal  equality,  and  each  manages  its 
affairs  independently  in  its  own  way.  This  state  of  things 
would  have  appeared  impossible  not  only  to  Englishmen  be- 
fore the  Reformation,  when  all  citizens  were  Roman  Catho- 
lics, but  also  to  Protestant  Englishmen  during  the  times  when 
the  principle  of  uniformity  in  religion  prevailed.  Now  this 
principle  is  universally  abandoned  as  oppressive,  unjust,  and 
unreasonable. 

Whether  disestablishment  will  follow  in  Scotland,  Wales, 
and  at  last  even  in  England,  is  only  a  question  of  time. 
True  religion  in  these  countries  will  be  the  gainer.  The  Free 
Church  of  Scotland  started  with  the  establishment  principle, 
but  has  abandoned  it  under  the  influence  of  successful  expe- 
rience. 

Switzerland. 

Switzerland  approaches  nearest  the  United  States  in  her 
republican  organization,  though  differing  in  nationality  and 
language.  She  is  the  oldest  republic  in  Europe,  dating  from 
"  the  eternal  covenant  "  of  Uri,  Schwyz,  and  Unterwalden, 
which  was  concluded  August  i,  1291.' 

'  See  Dr.  Bluntschli  (a  native  of  Zurich,  Professor  of  Legal  Science  at  Heidel- 
berg, d,  1881)  :  "  Geschichte  des  Schweizerischen  Bundesrechtes  von  den  crs- 
ten  ewigen  BUnden  bis  auf  die  Gegenwart,"  2d  ed.  Stuttgart,  1875.  2  vols. 
The  second  volume  contains  the  documents.  The  first  covenant  of  1291  is  in 
Latin,  and  begins  :  "  In  nomine  Domini.  Amen."  This  form  is  followed  in  the 
later  covenants.  The  sacred  oath  of  the  men  in  Grlitli,  on  the  Lake  of  the  Four 
Cantons,  in  1308,  was  a  renewal  of  the  covenant  of  1291,  and  followed  by  the 
expulsion  of  the  foreign  rulers  appointed  by  King  Albrccht  of  Austria.  On 
Dec.  9,  1315,  after  the  memorable  battle  of  Morgarteii,  the  covenant  was  again 
renewed  at  Brunncn.  The  story  of  William  Tell,  immortalized  by  the  historic 
skill  of  Johann  von  Mliller,  and  still  more  by  the  poetic  genius  of  Schiller,  is 
unfortunately  a  myth,  though  with  a  kernel  of  truth      "  Auch  die  Geschichte 


88  Church  and  State  in  the  United  States. 

Originally  the  Swiss  republic  was  a  loose,  aristocratic  con- 
federacy of  independent  cantons,  and  recognized  only  one 
religion,  the  Roman  Catholic,  in  the  middle  ages,  and  two 
after  the  Reformation,  the  Roman  Catholic  and  the  Re- 
formed (/.  e.,  the  church  reformed  by  Zwingli  and  Calvin). 

In  1848,  after  the  defeat  of  the  Sondcrbiind  of  the  Roman 
Catholic  cantons,  which  obstructed  all  progress,  the  con- 
stitution was  entirely  remodelled  on  democratic  principles, 
and  after  the  American  example.  The  confederacy  of  can- 
tons was  changed  into  a  federal  state  with  a  representation 
of  the  people,  and  with  a  central  government  acting  directly 
upon  the  people.  The  legislative  branch  of  the  government 
{Bundesversainmlung,  Congress)  was  divided  into  two  houses, 
— the  StdndcratJi,  corresponding  to  our  Senate,  and  consist- 
ing of  forty-four  deputies  of  the  twenty-two  cantons  (which 
constituted  the  old  Diet),  and  the  Nationalrath,  or  House  of 
Representatives,  elected  by  the  vote  of  the  people  according 
to  population  (one  to  every  20,000  souls).  The  executive 
department  or  Bundesrath  consists  of  seven  members,  ap- 
pointed by  the  two  branches  of  the  legislature  for  three 
years.  They  constitute  the  cabinet.  The  President  {Biindcs- 
prdsidcfit)  and  the  Vice-President  of  the  republic  are  not 
elected  by  the  people,  as  in  the  United  States,  but  by  the 
cabinet  out  of  their  number,  and  only  for  one  year.  The  ju- 
dicial department  or  supreme  court  {Biindesgericht)  consists 
of  eleven  judges  elected  by  the  legislature  for  three  years, 
and  decides  controversies  between  the  cantons,  etc' 

The  constitution  of  1848  was  again  revised  and  still  more 
centralized  May  29,  1874,  with  reference  to  the  relation  of 
the  Federal  government  to  railroads,  post,  and  telegraphs, 
liberty  of  commerce,  emigration,  etc.     The  revision  wassub- 

von  Tell"  {says  Bluntschli,  /.,  6g),  "  welcher  den  Vogt  Gessler  erschoss,  weil 
er  in  ihm  den  freien  Mann  verhohnt  Jind  den  Vater  geschiindet  haite,  enthdlt, 
wenn  sie  auch  im  Verfolg  sagenhaft geschmiickt  wiirde,  dock  einen  dchten  Zug 
des  schweizerischen  Nationalcharakters,  und  ist  desslulb  auch  so  popular  ge- 
worden." 

'  Comp.  Rtittimann  :  "  Das  nordamerikanische  Bundesstaatsrecht  verg- 
lichen  mit  den  politischen  Einrichtungen  der  Schweiz."  Zurich,  1S67-72.  2 
vols. 


Religious  Liberty  in  Modern  Europe.  89 

mitted  to  the  vote  of  the  people  and  accepted  April  10,  1874, 
by  340,199  votes  against  198,013,  and  by  fourteen  and  a  half 
of  the  cantons. 

The  Constitution  of  1848  guaranteed  "the  free  exercise  of 
divine  worship  to  the  recognized  confessions  "  (/.  e.  the  Ro- 
man Catholic  and  Reformed),  but  forbade  the  order  of  the 
Jesuits.'  The  Constitution  of  1874  goes  further  and  comes 
nearer  the  American  Constitution  by  declaring,  without 
qualification,  that  freedom  of  belief  and  conscience  are  in- 
violable, that  no  one  can  be  forced  to  accept  or  support  a 
religion,  or  be  punished  on  account  of  religious  views,  and 
that  the  free  exercise  of  worship  is  secured  within  the 
limits  of  morality  and  public  safety.'  But  the  same  Con- 
stitution, like  that  of  1848,  excludes  the  order  of  the  Jesuits 
and  afHliated  orders  from  Swiss  territory,  and  prohibits  their 
members  to  exercise  any  kind  of  activity  in  church  or  school.^ 
The  same  prohibition  may  be  extended  to  other  spiritual 
orders  which  are  deemed  dangerous  to  the  state  or  which 
disturb  the  peace  of  the  confessions.*     The  Constitution  for- 

'  Arts.  44  and  58. 

'Art.  49.  "Die  Glaiibens- und  Gewissensfreihcit  ist  unvcrlctzlich — A'ie- 
mand  darf  zur  Theilnahme  an  einer  Religionsgenossenschaft,  oder  an  einem 
reltgiosen  Unterricht,  odcrzur  Vomakme  einer  reltgiosen  I/andlung gezwungen, 
order  wegen  Glatibensansichten  mit  Strafen  irgend  weleher  Art  belegt  werden. 
Ueber  die  religiose  Erziehung  dcr  Kinder  bis  zum  erfiilUcn  jb.  Altersjahr 
verfiigt  im  Sinne  vorstehender  Grundsdtze  der  Inhaber  der  viiterlichen  oder  vor- 
mundschaftlichen  Gezuall.  Die  Attsiibting  biirgerlicher  oder  poUtisc her  Rechte 
darf  durch  keinerlei  Vorschriften  oder  Bedingtengen  kircldicher  oder  religioser 
A^attir  beschrdnkt  werden.  Die  Glaubensansiehtcn  enlbinden  nicht  von  der 
Erfiillung  der  biirgerlichen  PJlichtett.  A'iemand  ist  gehalten,  Steuem  zu  be- 
zahlen,  welche  speciell  fiir  eigentliche  Kultuszwecke  einer  Religionsgenossen- 
schaft, der er  nicht  angehbrt,  auferlegt  werden." 

Art.  50.  "  Die  freie  Ausiibung  goitesdienstlicher  Ilandlungen  ist  innerhalb 
der  Schranken  der  Sittlichkeit  und  der  offentlichen  Ordntmg gewdhrleistet." 

'  Art.  51.  ^'DerOrden  der  Jesuiten  und  die  ihm  afjiliirten  Gesellschaften  diir- 
fen  in  keinem  Theile  der  Schweiz  Aufnahme  finden,  und  es  istihren  Gliedem 
jede  Wirksamkeit  in  Kirche  und  Schule  untersagt." 

*  Art.  51,  Sec.  2.  "Dieses  Verbot  kann  durch  Bundesbeschluss  auch  auf 
andere  geistliche  Orden  ausgedehnt  iverden,  deren  Wirksamkeit  staatsgefakr- 
lich  ist  oder  den  Frieden  dcr  Konfessionen  stort."  Under  tins  restriction  the 
Salvation  Army  was  scandalously  persecuted  in  several  places  of  republican 
Switzerland  in  1883  and  18S4. 


go  Church  and  State  in  the  United  States. 

bids  moreover  the  establishment  of  new  or  the  re-establish- 
ment of  abolished  convents  and  religious  orders.' 

These  restrictions  are  un-American,  and  an  abridgment 
of  religious  liberty. 

There  is  another  important  difference  between  the  two 
countries.  The  principle  of  religious  liberty  has  not  yet 
worked  its  way  into  the  several  cantons  of  Switzerland. 
Each  canton  has  still  its  own  established  church — either 
Roman  Catholic  or  Reformed — supported  and  ruled  by  the 
civil  magistrate.  In  recent  times  the  politicians  and  so-called 
"  reformers  "  have  controlled  the  church  in  the  interest  of  pre- 
vailing rationalism,  and  have  forced  the  faithful  adherents  of 
the  Reformation  creeds  to  found  free  churches,  in  Geneva, 
the  Canton  de  Vaud,  and  Neuchatel.  The  advanced  liberal 
or  radical  party  in  Switzerland  is  very  illiberal  and  intoler- 
ant towards  positive  Christianity.  It  would  be  far  better  if 
the  connection  between  church  and  state  in  the  different 
cantons  were  dissolved,  and  religion  allowed  to  take  its  nat- 
ural course.  But  the  politicians  will  not  surrender  their  con- 
trol over  religion. 

The  free  churches  in  French  Switzerland  have  shown  a 
high  decree  of  spiritual  vitality  and  liberality. 

The  German  Empire. 

The  German  Empire,  which  arose  under  the  leadership  of 
Prussia  from  the  brilliant  victories  over  Austria  in  1866,  and 
over  France  in  1S70,  was  proclaimed,  by  a  striking  nemesis  of 
history,  at  Versailles  in  the  palace  of  the  persecutor  of  the 
Huguenots,  the  destroyer  of  the  Palatinate  and  the  robber  of 
Alsace,  Louis  XIV.,  Jan.  18,  1871."  It  marks  an  immense 
progress  of  liberty  over  the  German  Roman  Empire,  which 
lasted  eight  hundred  years,  from  the  coronation  of   Charle- 

'  Art.  52.  "  Die  Errichtung  netier  tind  die  Wiederherstellung  aufgehobener 
Kloster  oder  religioser  Orden  ist  unzuldssig." 

^  The  historian  Leopold  von  Ranke  is  reported  to  have  said,  in  reply  to  a 
question  of  Mons.  Thiers  during  the  Franco-German  war  in  1S70,  that  Germany 
was  making  war,  not  upon  Napoleon,  not  upon  the  French  republic,  least  of 
all  upon  the  French  nation — but  upon  Louis  XIV.  Thiers,  himself  a  distin- 
guished historian,  wondered  at  the  long  memory  of  the  Germans. 


Religious  Liberty  in  Modern  Europe.  91 

rriagne  by  Pope  Leo  III.  (800),  to  the  resignation  of  Francis 
II.  (1806),  and  over  the  feeble  German  Confederacy,  which 
after  a  brief  interregnum  succeeded  it  for  a  short  period 
(18 1 5-1 866). 

The  German  Empire  differs  widely  from  the  American 
Republic  by  its  monarchical  basis  and  hereditary  principle, 
but  nevertheless  resembles  it  in  several  important  respects. 
Both  owe  their  origin  to  secular  causes,  and  emerged  success- 
fully from  a  war  of  self-defence,  the  one  against  Great  Britain, 
the  other  against  France.  Both  are  compact  federal  states,' 
with  a  strong  central  sovereignty  which  acts  directly  upon 
the  people,  as  distinct  from  a  loose  confederacy  of  indepen- 
dent States,''  such  as  were  the  ancient  leagues  of  Greece,  the 
American  Confederation  before  1787,  the  Swiss  Confederacy 
before  1848,  and  the  German  Bund  which  expired  in  1866. 
Both  are  confined  to  political  and  civil  interests,  and  have  no 
direct  or  ofificial  connection  with  the  church,  but  leave  reli- 
gion to  the  several  States,  and  dare  not  interfere  with  them. 
Every  State  of  Germany  has  its  own  independent  state  church, 
with  more  or  less  toleration  for  "  sects."  There  is  no  such 
thing  as  an  imperial  church  {Rcichskirche),  any  more  than 
there  is  a  national  American  church  ;  there  is  not  even  such 
an  organic  connection  between  the  different  Protestant 
churches  of  the  same  confession,  as  exists  in  the  United 
States.'  Each  church  is  confined  to  the  geographical  bound- 
aries of  the  State.  Ciijus  rcgio  ejus  rcligio.  This  condition 
dates  from  the  Diet  of  Spire,  1526,  which  allowed  every  Ger- 
man State  to  act  on  the  question  of  the  Reformation  accord- 
ing to  its  own  sense  of  duty  to  God  and  the  emperor.  The 
Westphalia  Treaty  of  1648  confirmed  the  equal  rights  of  the 
two  contending  churches.  But  the  Pope  never  consented  to 
even  this  limited  toleration  and  will  always  protest  against  it. 
The  Papal  Syllabus  of  1864  condemns  religious  toleration 
among  the  eighty  heresies  of  the  age.     The  Roman  Church 

'  Bundesstaat.  '•  Staatenbitnd. 

'  The  only  quasi-official  bond  of  union  between  them  is  the  so-called  Eise- 
nach Conference,  which  meets  once  a  year  at  Eisenach  for  the  purjiosc  of  secur- 
ing co-operation  in  a  few  matters  of  general  interest,  such  as  the  revision  of  the 
Luther  Bible. 


92  Church  and  State  in  the  United  States. 

acknowledges  no  other  church,  and  cannot  do  it  consistently. 
She  knows  no  geographical  and  national  boundaries,  and 
rallies  around  the  common  centre  of  the  Vatican  "vice- 
gerent of  God  on  earth."  She  must  submit,  of  course,  to 
hard  necessity,  but  does  it  under  protest:  Noji possiunus. 

The  Constitution  of  the  German  Empire,  dated  April  14, 
187 1,  if  we  except  the  words,  "of  God's  grace"  {von  Gottes 
Gnadcii),  attached  to  the  name  of  the  emperor,  says  nothing 
about  religion,  and  requires  no  religious  tests  as  qualifica- 
tion for  civil  and  political  offices  under  the  national  govern- 
ment. Consequently  the  imperial  Parliament  is  accessible 
to  men  of  all  creeds  or  of  no  creed.' 

The  principle  of  the  freedom  of  conscience  and  worship, 
and  the  equality  of  the  religious  confessions  before  the  law 
was  first  proclaimed  as  one  of  the  fundamental  rights  of  the 
German  people  by  the  Frankfort  Parliament  in  1849,  ^"<^ 
adopted  by  several  States  (Prussia,  Saxony,  etc.).  The  North 
German  Bund^hy  an  imperial  law  of  July  3,  1869,  proclaimed 
the  same  principle,  and  abohshed  all  remaining  restrictions 
of  civil  and  political  rights  on  account  of  religion  which  ex- 
isted in  the  various  States.^  This  law  passed  into  the  legis- 
lation of  the  whole  empire  in  1871.' 

'  "  Verfassung  des  deutschen  Reichs  von  Dr.  Ludwig  von  Ronne."  Berlin, 
3d  ed.,  1S78. 

'  The  law  of  July  3,  1S69,  is  as  follows  :  "  Alle  noch  besiehenden,  aiis  der 
Verschiede7theit  des  religiosen  Bekenntnisses  hergeleiteten  Beschrdnkungen  der 
biirgerlichen  und  staatsbiirgerlichen  Rechte  werden  hierdurch  aiifgehoben. 
Insbesondere  soil  die  Befdhigttng  zur  Theilnakme  an  der  Gemeinde-  und 
Landesvertretung  zur  Bekleidung  offentlicher  Aemier  votn  religiosen  Bekennt- 
niss  unabhcingig sein.'^ 

2  Dr.  L.  von  Ronne,  "Das  Staatsrecht  des  deutschen  Reiches "  (2d  ed., 
Leipzig,  1877,  2  vols.),  vol.  i.  p.  176:  "Die  Verfassung  des  Deutschen 
Reiches  enthdlt  zwar  keine  Bestimmung  iiher  die  Glaubens-  und  Religions- 
freiheit  im  Reiche,  allein  schon  das  Reichsgesetz  vom  I  November,  1867,  tibcr 
die  Freiziigigkeit,  welches  im  ganzen  Gebiete  des  Reiches  Geltung  hat,  bestimrnt 
im%  I,  dass  keinem  Reichsangehorigen  urn  des  Glaubensbekenntnisses  willen 
der  Aufenthalt,  die Niederlassung,  der  Gewerbebetrieb  oder  der  Erwerb  von  Grund- 
eigenthum  verweigert  werden  darf.  Der  hierdurch  atterkannte  Grundsatz  der 
Glaubens  und  Religionsfreiheit  hat  demndchst  seinen  erweiterten  Ausdruck 
gefunden  in  dem  Reichsgesetze  votn  3  Juli,  1869,  betreffend  die  Gleichberechtig- 
ung  der  Konfessionen  in  biirgerlicher  mid  staatsbiirgerlicher  Beziehimg.     Dieses 


Religious  Liberty  in  Modern  Europe.  93 

So  far  the  German  Empire  is  committed  to  the  principle 
of  rcHgious  liberty  and  equality  as  much  as  the  United 
States,  and  can  as  little  interfere  with  the  religious  convic- 
tions and  the  exercise  of  public  worship,  or  deny  to  any 
citizen  his  civil  and  political  rights  on  account  of  his  re- 
ligious opinions.  The  only  restriction  in  both  countries  is, 
that  a  man's  religion  cannot  excuse  him  from  the  duties  of 
citizenship. 

fiir  das  Cebiet  dcs  Norddcittschen  Bundes  erlassene  Gesetz  trat  in  Folge  des  Art. 
80,  Ziffer  I,  Nr.  20  der  tnit  Baden  uud  Ilessen  vereinharten  Bundesverfassung 
mit  dent  I  yaniiar,  ii']i,auch  in  Baden  und  Siidhessen,  ferner  von  demselben 
Zeitpiinkte  an,  zufolge  des  Art.  i  und  des  Art.  2,  A'r.  6  des  Biindnissvertrages 
voni  25  November,  1S70,  auch  in  VVUrtemberg,  und  endlich  in  Bayern  zufolge 
des  §  2,  Ziffer  i,  Nr.  10  des  Reichsgesetzes  vom  22  April,  1871,  vom  Tage  der 
Wirksamkeit  dieses  Reichsgesetzes  an  in  Kraft.  Dagegen  ist  die  Einfiihrung 
des  Geselzes  in  dent  Reiehslande  Elsass-Lothringen  nicht  erfolgt.  Das  Gesetz 
bestintint,  dass  alle  int  Geltungsbereiche  desselben  noch  bestehenden,  aus  der 
Vcrschiedenheit  des  religiosen  Bekenntnisses  hergeleiteten  Besc/irdnkungen  der 
btirgerlichen  und  staatsbiirgerlichen  Rerhte  aufgehoben  werden,  tiud  dass 
insbesondere  die  Befdhignng  zttr  Theilnahine  an  der  Gemeinae-  und  Landesver. 
tretung  und  znr  Bekleidung  offetitlicher  Aemter  vom  religiosen  Bekenntnisse 
unabhdngig  sein  soil." 

Comp.  Georg  Meyer,  "  Lehrbuch  des  deutschen  Staatsrechtes  "  (Leipzig, 
1S78),  pp.  575  sqq.,  and  610,  "  Die  Rcichsgesctzgebung"  (he  says,  p.  610)  "  hat, 
indent  sie  alien  Reichsangehorigen  das  Recht  der  freien  Niederlassung  im  ganzen 
Reichsgebiet  gezviihrleistet,  und  jede  aus  der  Verschiedenheit  der  Confessionen 
Jliessende  Ungleichheit der  btirgerlichen  und poliiischen  Rechte  ausschliesst,  den 
Einzelstaaten  die  Befugniss  entzogen,  bestimmten  Religionsgesellschaften  die 
Aufnahme  im  Staalsgebiet  zu  verweigern.  Die  Reprobation  einer  Religions- 
gesellschaft  kann  kiinftighin  nur  int  IVege  der  Reichsgesetzgebuug  stattfinden. 
Dagegen  ist  reichsgesetzlich  weder  eine  allgemeine  Freiheit  der  Bildung  von 
Religionsvereinen,  noch  eine  Gleichheit  der  Religionsiibttng  fiir  alle  Confessionen 
garantirt.  Vielmehr  weisen  in  diesem  Punkte  die  Landesgesetzgebungen  grosse 
Verschiedenheiten  auf.  Einige  geben  die  Bildung  von  Religionsgesellschaften 
unbedingt  frei  und gewdhren  alien  voile  hdusliche  und  iiffentliche  ReligionsU- 
bung.  Nach  diesen  dussert  sich  das  Reformationsrecht  des  Staates  nur  noch  in 
der  Ertheiliing  von  Corporationsrechten  und  der  Verleihung  besonderer  Priv- 
ilegien.  A  ndere  gewdhren  zwar  das  Recht  der  freien  Vereinigung  zn  religiosen 
Gemeinschaften,  dagegen  keine  Gleichheit  der  Religionsiibung ;  die  Art  dersel- 
ben  richtft  sich  nach  den  besonderen  Venvillsgungen.  A'ochandere  endlich  haben 
an  dent  Krforderttiss  staatlicher  Genehniigung  fiir  die  Bildung  von  religiosen 
Gemeinschaften  festgehalten."  For  further  CDnsultation  I  may  refer  to  Paul 
Laband,  "Das  Staatsrecht  des  deutschen  Reiches "  (Tal)ingen,  1S7&-S2,  3 
vols.),  vol.  i.  pp.  l6i  sq. 


94  Church  and  State  in  the  United  States. 

In  one  instance,  nowever,  the  Empire  has,  from  patriotic 
motives,  interfered  with  rehgion,  namely,  in  the  expulsion 
of  the  Jesuits  from  German  territory,  by  an  imperial 
law  of  July  4,  1872.'  This  was  an  act  in  self-defence 
against  the  political  ambition  and  agitation  of  the  hier- 
archical party  under  the  lead  of  the  Jesuits,  who  own 
no  country  except  the  church,  and  no  loyalty  except  to 
the  Pope.  But  it  is  nevertheless  an  infringement  of  religious 
liberty.  Such  an  expulsion  would  be  unconstitutional  in 
the  United  States,  unless  the  Jesuits  by  overt  acts  should 
endanger  the  public  peace  and  safety. 

In  the  several  States  which  compose  the  Empire,  the 
union  of  the  state  with  the  recognized  confessions,  i.  e.,  the 
Roman  Catholic  and  the  Evangelical  (Lutheran  and  Re- 
formed) Churches  continues.  Dissenting  sects  enjoy  the 
rights  of  private  corporations.* 

Germany  allows  the  greatest  freedom  of  thought,  but  is 
very  conservative  in  action.  In  no  country  is  theological 
speculation  and  investigation  so  freely  carried  on  and  en- 
couraged as  in  German  universities  under  the  patronage 
of  the  government,  and  in  no  country  is  a  certain  degree  of 
education  more  general ;  for  the  laws  of  Prussia  and  nearly 
all  other  German  States  provide  for  the  establishment  of 
elementary  schools  in  every  town  and  village,  and  compel 
parents  to  send  their  children  to  these  or  private  schools. 
And  yet  the  most  opposite  parties  in  theology,  from  strict 
Lutheran  orthodoxy  to  rationalism,  prefer  to  remain  under 

'  See  Schulthess,  "  Europaischer  Geschichtskalender"  for  1872,  p.  164. 

''Meyer,  /.  c,  p.  611:  "Die  katholische  und  die  evangelische  {lutherische 
und  reformirte)  Kirche  nehmen  die  Stellwig  privilegirter  Religionsgemeinschaf- 
ten  ein  und gelten  ah  offeniliche  Corporationen.  Sie  geniessen  einen  besonderen 
strafrechtlichen  Schtitz,  Hire  Geistlichen  sitid  in  vielen  Beziehungen  den  Staats- 
beamten  gleichgeslellt,  sie  erhalten  eine  Dotation  aus  Staatsmitleln  und  ihre  Ab- 
gaben  konnen  im  IVege  der  Verwaltungsexecution  beigetrieben  iverden.  Den 
Katholiken  stehen  die  Altkatholiken  gleich,  welche  vom  Standpunkte  des  Staates 
als  Katholiken  zu  betrachten  sind. 

"  Unter  den  ubrigen  christlichen  Religionsgesellschaften  sind  diejenigen  beson- 
ders  ausgezeichnet,  welche  sick  im  Besitz  von  Corporationsrechten  befinden. 
.  .  .  Diejenigen  Religionsgemeinschaften,  welche  Corporationsrechte  nicht 
\besiizen,  haben  den  Charakter  gewohnlicher  Vereine" 


Religious  Liberty  in  Modern  Europe.  95 

the  same  state-church  roof  of  protection  and  support,  and 
look  with  distrust  or  contempt  upon  the  "sects." 

Nevertheless  some  of  these  sects  are  spreading,  in  num- 
bers and  respcctabiUty,  and  the  "Old  Catholics,"  too,  have 
become  a  distinct  organization  with  government  recognition 
in  Prussia  (1875)  and  Baden  (1874). 

The  religious  statistics  of  the  German  Empire,  Avhich 
numbers  a  population  of  over  forty-six  millions,  according  to 
the  census  of   Dec.  i,  1880,  are  as  follows: 

Protestants 28,330,967 

Roman  Catholics     .....  16,232,606 
"  Christian  Sects  "    .....  78,395' 

Jews 561,612 

"  No  religion "  .....  2fiA^^ 

By  "  Protestants  "  are  meant  three  denominations  supported 
and  governed  by  the  state,  Lutherans,  German  Reformed, 
and  United  Evangelical.  The  last  is  the  largest,  being  the 
state-church  of  Prussia  and  of  those  minor  States  (Baden, 
Wiirttemberg,  etc.)  which  have  adopted  the  union  of  the 
Lutheran  and  Reformed  Churches.  "The  Christian  sects" 
are  Mennonites,  Moravians,  Irvingites,  Methodists,  Baptists, 
and  others,  who  support  and  govern  themselves,  or  are  sup- 
ported by  their  brethren  in  England  and  America.  The 
"  Old  Lutherans "  are  seceders  from  the  state-churches  in 
Prussia  and  Saxony,  and  figure  in  the  statistics  among  the 
sects,  although  they  are  the  most  orthodox  among  Prot- 
estants. 

Prussia. 

'v.^Pirussia'Stands  at  the  head  of  the  German  States  and  has 
the  controlling  influence  in  the  German  Empire.  Her  king 
is  by  hereditary  right  also  Emperor  of  Germany.  She  has 
in  theory  been  always  very  tolerant  and  allowed  the  utmost 
h'berty  of  opinion  within  the  state-church,  but  the  exercise 
of  public  worship  and  the  organization  of  dissenting  com- 
munities was  controlled  and  restricted  by  law  till  1850.* 

'  This  is  too  small  an  estimate. 

'  The  Allgemeine  Landrecht  of  Prussia,  in  agreement  witli  the  spirit  of 
Frederick  the  Great,  declares  (Tit.  xi.    §^  2  and  3) :    "  Jtdein  Einwohtur  in 


96  Church  and  State  in  the  United  States. 

"The  great  Elector"  offered  a  hospitable  asylum  to  the 
expelled  Huguenots  of  France,  at  a  time  when  the  Calvinists 
were  denounced  by  orthodox  Lutherans  as  dangerous  here- 
tics. Frederick  II.,  the  "  alte  Fritz,"  one  of  the  demi-gods  of 
the  German  people,  was  an  admirer  of  Voltaire's  philosophy 
of  toleration  (though  he  despised  the  man),  and  wished  every 
Prussian  to  get  saved  "  after  his  own  fashion"  ;  yet  he  com- 
manded the  celebrated  Pietist,  Dr.  Francke  in  Halle,  to  go 
to  the  theatre  which  he  had  denounced,  and  ordered  a 
clergyman,  Frommann  (Piousman),  to  change  his  name  into 
Frohmann  (Merryman). 

There  arc  three  recognized  churches  in  Prussia,  the  Lu- 
theran, the  German  Reformed,  and  the  Roman  Catholic. 
The  first  two  were  consolidated  into  one  by  Frederick 
William  III.,  in  1817,  under  the  name  of  the  United  Evan- 
gelical Church.  The  House  of  Hohenzollern  belongs  origi- 
nally to  the  German  Reformed  Church,  but  is  now  identi- 
fied with  the  United  Evangelical  Church.  The  union 
was  opposed  by  the  "  Old  Lutherans,"  who  seceded  and 
were  at  first  harshly  dealt  with  by  the  government,  but 
achieved  liberty  under  Frederick  William  IV.  (1845).  The 
Evangelical  Union,  as  officially  explained  (1834  and  1852), 
does  not  obliterate  the  doctrinal  distinction  of  the  two  confes- 
sions, nor  interfere  with  personal  convictions,  but  requires 
both  to  live  under  one  form  of  government,  to  use  the  same 
liturgy,  and  to  commune  together  at  the  same  altar.  But 
the  last  feature,  die  AbcndmaJdsgcmeinscJiaft,  is  offensive 
to  the  conscience  of  strict  Lutherans,  who  reject  the  Re- 
formed theory  of  the  Lord's  Supper  as  a  heresy.  The 
Lutherans  of  the  newly  acquired  provinces  of  Schleswig- 
Holstein,  Lauenburg,  Hanover,  Frankfort,  etc.,  are  not  for- 
mally incorporated  in  the  union,  but  subject  to  the  same 
central  government  of  the   King  and   his   Cultus-Minister. 

Staate  muss  eine  vollkommene  Glau'betts-  und  Gewissensfreiheit  gestattet  iverden. 
Niemand  ist  schuldig  ilber  seine  Privatmeinungen  in  Religionssachen  Vorschrif- 
ten  vom  Staate  anzunehmen."  But  liberty  is  here  restricted  io  private  opinions 
which  lie  beyond  the  jurisdiction  of  the  state,  and  may  be  enjoyed  under  the 
most  despotic  government.     "  Gedanken  sind  zollfrei" 


Religious  Liberty  in  Modern  Europe.  cyj 

Smaller  religious   communions  enjoy  the   rights  of  private 
corporations  by  special  concessions  of  the  government. 

According  to  the  census  of  December  i,  i8So,  the  total 
population  of  Prussia  numbered  27,279,111  souls,  classified 
as  follows: 

Protestants 17,613,530  (64^) 

Roman  Catholics     ......       9,205,136  (33  ^) 

Jews 363,790 

The  rest  belong  to  smaller  Christian  "sects,"  or  to  "no 
creed." 

The  Evangelical  state-church,  which  numbers  about  eigh- 
teen millions,  or  nearly  two  thirds  of  the  population,  is 
reduced  to  a  department  of  state  and  connected,  under  one 
head  (the  Cultus-^Iinister),  with  the  department  of  educa- 
tion and  medical  affairs.  This  is  a  humiliating  position,  to 
which  the  Roman  Church  would  never  submit.  King 
Frederick  William  IV.  (brother  of  Emperor  William)  felt 
painfully  the  weight  of  his  position  as  summus  episcopus,  and 
frequently  expressed  his  wish  to  restore  the  Evangelical 
Church  to  proper  independence  and  self-government,  with 
full  toleration  for  dissenters ;  but  his  force  was  broken  by 
the  revolution  of   1848. 

The  Prussian  Constitution  of  January  31,  1850,  marks  a 
great  progress  in  the  line  of  religious  liberty.  It  guarantees 
the  freedom  of  conscience  and  public  ivorship,  and  indepen- 
dence, in  the  administration  of  their  internal  affairs,  to  the 
Evangelical  and  Roman  Catholic  Churches,  and  all  other  re- 
ligious associations,  subject  only  to  the  civil  and  political 
duties.  As  to  education,  the  Protestant  children  should  be 
instructed  in  religion  by  the  Protestant  clergy;  the  Roman 
Catholic  children  by  the  Roman  Catholic  clergy,  and  the 
Jews  by  their  rabbis.* 

The  most  important  provision  is  Article  XII.,  which 
guarantees  the  three  essential  elements  of  religious  and 
civil  fredom   :    i,  the  freedom  of  private  and  public  worship; 

'  See  the  Prussian  Vcrfassun^s-Urkunde  of  1850,  articles  XII.,  XIII., 
XIV.,  XV.,  XVI.,  XVIII.,  XXIV.  Similar  provisions  had  been  in.ide  by 
the  famous  national  assembly  of  Trankfurt  in  lS4(},  in  Art.  V.  of  the  Crund- 
rechte  des  deutschen  Volkes. 


98  Church  and  State  in  the  United  States. 

2,  the  right  of  religious  association  ;  3,  the  enjoyment  of 
civil  and  political  rights,  irrespective  of  religious  views.  The 
last  implies  separation  of  church  and  state  as  far  as  civil  and 
political  ofifices  are  concerned.' 

Prussia  has  thus  taken  the  lead  in  this  progress  of  modern 
culture,  and  prescribed  the  course  of  the  German  Empire. 
One  of  the  most  eminent  writers  on  law  in  Prussia,  in  com- 
menting on  the  twelfth  article,  remarks  that  Prussia  has 
constitutionally  recognized  perfect  religious  liberty  as  "  the 
noblest  fundamental  right  of  every  citizen,"  not  in  the 
spirit  of  religious  indifference,  but  as  the  ripe  fruit  of  a 
development  of  more  than  a  hundred  years,  as  a  victory  of 
justice  and  of  a  truly  Christian  view  of  life.  He  adds  that 
it  is  the  merit  of  the  North  Americans  to  have  first  pro- 
claimed this  principle  as  a  constitutional  law.^ 

But  while  this  great  principle  remains,  the  independence  of 
the  recognized  confessions  in  the  management  of  their  own 
affairs,  which  was  likewise  guaranteed,  in  Articles  XV.  and 
XVIII.,  was  endangered,  modified,  and  in  part  abolished 
during  the  so-called  Cultitrkampf,  or  the  conflict  of  modern 
culture  with  mediaeval  obscurantism,  which  has  agitated 
Germany  since  1870. 

*  Article  XII.  is  as  follows  :  "  Die  Freiheit  des  religiosen  Bekenntnisses,  der 
Vereinigiing  zu  Religionsgesellschaflen  tend  der gemeinsamen  hauslichen  und 
cffentUchen  Religionsiibtcng  ivird  gewdhrleistet.  Der  Genuss  der  hiirgerlichen 
und  staatsbiirgerlichen  Rcchte  ist  unabhdngig  von  dem  religiosen  Bekenntnisse. 
Deit  biirgerlichen  und  staatsburgerlicheti  PJlichten  darf  durch  die  Ausiibung  der 
Religionsfreiheit  kein  Abbruch  geschehen."  Comp,  L.  v.  Ronne,  "Das  Staats- 
recht  der  Preussischen  RIonarchie  "  (Leipzig, 3d  ed.,  1869-72),  vol.  i.,  Abth.  ii. 
p.  167  sqq.;  and  II.  Schulze,  "  Das  Preussische  Staatsrecht "  (Leipzig,  1872, 
77,    2  vols.),  vol.  i.  pp.  398  sqq. 

'^  Hermann  Schulze  (Prof,  of  Jurisprudence  in  the  University  of  Breslau, 
and  member  of  the  Prussian  House  of  Lords),  "  Das  Preussische  Staatsrecht," 
vol.  i.  pp.  405  sq.:  "  So  ist  vollkoininene  religiose  Bekenntniss freiheit,  als  das 
edelsle  Grundrecht  aller  Staatsgenossen,  in  Preussen  verfassungsmdssig  aner- 
kannt,  niclit  als  Zeichen  religioser  Gleichgiiliigkeit,  sondern  als  gereifte  Frucht 
einer  mehr  als  hutidertjdhrigen  Slaatsentwicklung,  als  Sieg  deutscher  Gerechtig- 
keit  und  ivahrhaft  christlicher  Lebensanschauung.  .  .  .  Den  Nordatneri- 
canern gebuhrt  das  Verdieitst,  zuerst  die  Religionsfreiheit  als  Verfassungsgesetz 
verkiindigt  zu  haben,  nachdem  Friedrich  der  Grosse  dieselbe  theoretisch  vertheidigt 
und praktisch  gchandhabt  hatte." 


Religious  Liberty  in  Modern  Eiirope.  oo 

This  important  and  interesting  conflict  was  provoked  by 
the  aggressions  of  Romanism,  as  shown  in  the  Papal  Syllabus 
of  1864,  which  declared  open  war  to  all  the  liberal  ideas  of  the 
age,  in  the  passage  of  the  infallibility  dogma  of  the  Vatican 
Council  in  1870,  and  in  the  open  hostility  of  the  Ultramon- 
tane party  to  the  new  German  Empire  with  a  Protestant 
head.  In  some  respects  the  Ciilturkampf  is  a  renewal  of 
the  old  war  between  the  emperor  and  the  pope,  or  state- 
craft and  priestcraft.  It  developed  the  singular  anomaly 
that  the  Protestant  Liberals  (the  so-called  National  Liberal 
party  in  the  German  Diet  and  the  Prussian  Chambers) 
attacked  the  liberty  and  independence  of  the  church  ;  while 
the  Roman  Catholics  (guided  by  the  Centre  party  in  the 
Diet)  defended  the  freedom  of  the  church,  to  be  sure  only 
in  their  own  interest,  and  in  the  hierarchical  sense  of  the 
term.  The  leaders  of  political  liberalism  in  Germany  and 
all  over  the  Continent  are  religiously  illiberal,  or  unchurchly 
and  anti-churchly,  and  wish  to  keep  the  church,  both  Catho- 
lic and  Protestant,  under  the  thumb  of  the  state.  They 
confound  clericalism  and  priestcraft  with  all  forms  of  posi- 
tive Christianity.  On  the  other  hand  the  majority  of  or- 
thodox Protestants  are  conservative  in  politics.  In  the 
Culturkampf  ihcy  were  either  passive  spectators,  or  aided  in 
the  enactment  of  the  May-Laws,  from  opposition  to  Rome, 
without  considering  that  thereby  they  weakened  their  own 
right  and  claim  to  independence.  'The  misfortune  of  Ger- 
many is  the  unnatural  alliance  of  religion  with  political  con- 
servatism, and  of  liberalism  with  infidelity.'  This  is  largely 
the  effect  of  state-church  coercion.  In  Great  Britain  and 
the  United  States  Christianity  is  friendly  to  political  and 
all  other  progress,  and  takes  the  lead  in  every  moral  reform. 

The  Cult iirkainpf  ccntVQd  in  Prussia,  and  the  prophecy  of 
Cardinal  Wiseman,  that  the  war  between  Romanism  and 
Protestantism  will  be  fought  out  on  the  sand  of  Branden- 
burg, seemed  to  approacli  its  fulfilment.  Prussia  felt  the 
necessity  of  protecting  herself  against  the  political  ambition 
of  the  hierarchy.  In  order  to  do  this  constitutionally,  the 
Prussian  legislature  {Landtag),  April  5,  1S73,  changed  those 


100  Church  and  State  in  the  United  States. 

articles  which  guaranteed  the  independence  of  the  church, 
as  follows,  the  changes  being  indicated  by  italics  : 

Article  XV. — "  The  Evangelical  and  the  Roman  Catholic  Church,  as  well  as 
every  other  religious  association,  shall  administer  independently  its  own  affairs, 
but  remains  subject  to  the  laws  and  to  the  legally  regulated  supervision  of  the 
state. 

"  In  the  same  measure  each  religious  association  shall  remain  in  posses- 
sion and  enjoyment  of  the  establishments,  endowments,  and  funds  devoted  to 
the  purposes  of  worship,  education,  and  benevolence." 

Article  XVIII. — "  The  right  of  the  state  to  nominate,  propose,  elect,  and 
ratify  appointments  to  ecclesiastical  positions  is  hereby  abolished,  unless  the 
right  rests  upon  patronage  or  some  other  legal  title. 

"  This  provision  shall  not  apply  to  the  appointment  of  chaplains  in  the  army 
or  clergymen  in  public  \i.  e.,  governmental]  establishments. 

"  As  to  the  rest,  the  law  regulates  the  functions  of  the  state  in  reference  to  the 
education,  appointment,  and  dismissal  of  the  clergy  and  the  servants  of  the 
church,  and  determines  the  limits  of  the  disciplinary  power  of  the  church."  ' 

These  changes  neutralized  the  force  of  the  original  articles 
or  reduced  them  to  a  mere  shadow.  But  even  this  shadow 
disappeared.  Two  years  later,  April  lo,  1875,  the  Landtag 
abolished  articles  XV.,  XVI.,  and  XVIII.  altogether,  and 
thus  freed  the  government  from  every  constitutional  limi- 
tation in  dealing  with  the  church  question.''     This  is,  from 

'  Artikel  XV. — "  Die  evangelische  und  die  romisch-katholische  Kirche,  sowie 
jede  andere  Religionsgesellschaft  ordnet  und  verwaltet  ihre  Angelegenheiten 
selbststandig,  bleibt  aber  den  Staats-Gesetzen  und  der  gesetzlich geordneten  Auf- 
sicht  des  Staates  unterworfen. 

"  Mit  der  gleichen  Massgabe  bleibt  jede  Religionsgesellschaft  im  Besitz  und 
Genuss  der  fur  ihre  Kultus-,  Unterrichts-,  und  Wohlthatigkeits-Zwecke  be- 
stimmten  Anstalten,  Stiftungen  und  Fonds." 

Artikel  XVIII. — "  Das  Ernennungs-,  Vorschlags-,  Wahl-  und  Bestatigungs- 
Recht  bei  Besetzung  kirchlicher  Stellen  ist,  soweit  es  dem  Staat  zusteht  und 
nicht  auf  dem  Patronat  oder  besondern  Rechtstiteln  beruht  aufgehoben. 

"  Auf  Anstellung  von  Geistichen  beim  Militair  und  an  offentlichen  Anstal- 
ten findet  diese  Bestimmung  keine  Anwendung. 

' '  Im  Uebrigen  regelt  das  Gesetz  die  Befugnisse  des  Staats  hinsichtlich  der 
Vorbildung,  Anstellung  und  Entlassung  der  Geistlichen  und  Religionsdiener 
und  stellt  die  Grenzen  der  kirchlichen  Disciplinargewalt  fest." 

See  Schulthess,  "Eur.  Gesch.kalender  "  for  1873,  pp.  36-45.  Dr.  Paul 
Hinschius  (Professor  of  Jurisprudence  in  Berlin,  who  helped  to  frame  the 
May-Laws),  "  Die  Preussischen  Kirchengesetze  des  Jahres,  1873,"  p.  xxix. 
They  give  also  the  May-Laws. 

*  The  repeal  was  proclaimed  by  edict,  dated  Bad  Ems,  June  18,  1875  :  "  We 
"William,  of  God's  grace  King  of  Prussia,  etc.,  order,  with  the  consent  of  both 


Religious  Liberty  in  Moderji  Europe.  lor 

the  American   standpoint,  a  retrograde  step  and  a  relapse 
into  Erastianism  and  state-despotism. 

The  Anti-Papal  Laws. 

The  ominous  change  of  the  constitution  in  1873  was  fol- 
lowed in  May  of  the  same  year,  under  the  direction  of  Dr. 
Falk,  the  liberal  minister  of  public  worship  and  instruction, 
by  the  enactment  of  the  so-called  four  May-Laws,  or  Falk- 
Laws,  whose  object  was  to  restrict  the  disciplinary  power  of 
the  Roman  Church  and  to  raise  up  a  cultured  and  patriotic 
clergy.  Pope  Pius  IX.,  in  letters  to  Emperor  William,  to 
the  German  bishops,  and  by  an  Encyclical  of  February  5, 
1875,  denounced  these  laws  in  the  strongest  terms  as  "  con- 
trary to  the  divine  constitution  of  the  church,"  and  declared 
them  "  null  and  void."  The  Prussian  bishops  openly  diso- 
beyed them.  This  conduct  forced  the  government  into 
supplementary  legislation  in  1874  and  1875,  enabling  the 
state  to  carry  out  the  May-Laws.  The  details  are  not 
necessary  for  our  purpose.' 

The  anti-papal  laws  were  intended  only  for  Prussia,  as 
temporary  measures  of  self-protection,  but  indirectly  they 
affected  also  the  whole  Empire.  Prince  Bismarck  conducted 
the  negotiations  with  Pope  Leo  as  prime  minister  of  Prussia, 
not  as  chancellor  of  the  empire  ;  but  he  is,  in  fact,  the  head 
of  both  under  William  L,  who  is  king  and  emperor;  and  to 
expel  the  disobedient  bishops  from  Germany  he  had  to  get 
authority  from  the  imperial  diet. 

In  this  conflict  the  Prussian  government,  blinded  by  its 
traditional  state-absolutism,  undervalued  the  strength  of  the 
Roman  Church  and  exceeded  its  Icgitiinate  power  by  inter- 
fering with  her  internal  affairs,  in  attempting  to  control 
even  the  theological  education  of  the  priesthood.  Although 
the  Roman  Church  in  Prussia  numbers  only  about  ten  mil- 
houses  of  the  Landtag  o{  our  mon.irchy,  as  follows  :  Articles  XV.,  XVI.,  and 
XVIII.  of  the  VerfasstiHgsurkunde  of  Jan.  31,  1S50,  arc  abolished."  The 
XVIth  article  guarantees  freedom  of  intercourse  between  the  religious  associa- 
tions and  their  ecclesiastical  superior  (the  I'oiic). 

'  They  arc  fully  explained  by  Professor  Hinschius  in  the  second  volume  of 
his  work  on  the  "  Prussian  Church  Laws  "  (1875). 


I02  Church  and  State  in  the  United  States,' 

lions  in  a  population  of  twenty-eight  millions,  she  is  a  con- 
solidated phalanx,  backed  by  the  most  powerful  organization 
centering  in  the  papacy.  Behind  this  organization  are 
those  invisible  religious  forces  which  lie  beyond  the  juris- 
diction of  the  government  and  the  efficiency  of  state  laws. 
The  government  saw  in  the  hierarchy  only  a  political  oppo- 
nent, and  tried  to  conquer  it  by  political  power.  Moreover, 
the  state  made  the  innocent  suffer  with  the  guilty,  and  did 
an  act  of  gross  injustice  to  the  Evangelical  Church,  which 
,was  included  in  this  Erastian  legislation,  although  she  had 
done  nothing  whatever  to  deserve  such  an  indirect  rebuke. 

For  seven  years  (i  873-1 880)  the  May-Laws  were  rigidly 
executed,  and  disobedient  bishops  deposed  and  exiled. 
The  imperial  government  came  to  the  aid  of  Prussia,  and 
authorized  by  a  law  of  May  4,  1874,  their  banishment  from 
German  territory.  The  Pope  answered  by  crowning  two  of 
the  "martyrs"  with  the  cardinal's  hat.  In  1877  eight  of  the 
twelve  Prussian  bishoprics  were  vacant,  and  about  four  hun- 
dred parishes  were  without  priests.  This  state  of  things 
threatened  general  confusion  and  could  not  last  long.  Per- 
.secution  gave  the  Roman  Church  the  glory  of  martyrdom 
and  the  credit  of  fighting  for  the  freedom  of  the  church. 
She  was  supported  by  the  laity,  who  were  left  like  flocks 
without  shepherds. 

The  government  began  to  feel  that  the  May-Laws  could 
not  be  maintained  and  executed  without  the  greatest  danger 
to  the  state.  In  the  meantime  the  National  Liberal  party 
began  to  break  up  in  factions;  the  socialists  made  two  at- 
tempts on  the  life  of  the  aged  emperor,  and  revealed  a 
more  dangerous  power  to  the  state  than  even  ultramontan- 
ism.  Prince  Bismarck  left  the  National  Liberal  party,  with 
whose  help  he  had  completed  the  organization  of  the 
empire,  and  built  up  a  conservative  party.  Emperor  William 
was  anxious  to  make  peace  with  the  church  before  his  death, 
and  the  Empress,  who  is  on  good  terms  with  the  bishops, 
moved  behind  the  curtain  in  the  same  direction.  In  the 
Roman  Church,  too,  a  great  change  took  place  by  the  death 
of  Pius  IX.  (1878),  with  whom  nothing  could  be  done,  and 


Religions  Liberty  in  Modern  Europe.  103 

the  accession  of  Leo  XI II.,  who  understands  the  poHcy  of 
accommodation  to  existing  circumstances,  and  showed  from 
the  start  a  disposition  to  come  to  a' peaceful  understanding 
with^tlie  central  power  of  Europe. 

"^C^Under  these  circumstances,  the  Prussian  government,  in 
1880,  asked  and  obtained  permission  from  the  Landtag  to 
suspend  the  execution  of  the  May-Laws  in  order  to  meet 
the  spiritual  wants  of  the  Catholic  laity,  who  were  innocent 
and  yet  suffered  most.  The  laws  were  suspended  during 
1880  and  1S81.  In  February,  1882,  the  government  went  a 
step  further  and  entered  into  negotiations  with  the  Pope 
through  a  special  ambassador,  Herr  von  Schlozer,  who  had 
formerly  been  in  Washington.  These  negotiations  resulted  in 
the  gradual  repeal  of  the  May-Laws,  which  was  completed 
April  29,  1887,  so  that  nothing  remains  of  them  except  the 
law  of  1872  which  makes  civil  marriage  obligatory  and 
sufificient,  the  laws  of  1875  and  1876  regulating  the  adminis- 
tration o7  church  property,  the  law  prohibiting  the  exercise 
of  church  discipline  by  foreign  tribunals,  and  the  An- 
zeigcpflicht ,  or  the  duty  of  notification,  which  requires  the 
Pope  and  the  bishops  to  inform  the  government  of  ecclesi- 
astical appointments  and  concedes  to  the  state  the  right  of 
veto  on  grounds  of  civil  or  political  disabilities  of  the 
appointees. 

No  principle  was  surrendered,  but  a  modus  vivendi  was 
secured  for  a  peaceful  coexistence  of  a  sovereign  state  and  a 
sovereign  church.' 

'  On  the  recent  conflict  between  Pnissia  and  the  papacy,  sec  Prof.  Paul 
Hinschius,  "  Die  Preussischen  Kirchcngcsetze  des  Jahres  1S73  "  (Berlin,  1S73); 
by  the  same,  "  Die  Preussischen  Kirchengesetze  der  Jahre  1874  und  1S75, 
nebst  dem  Reichsgcsetze  vom  4  Mai,  1874  "  (Berlin,  1S75).  A  learned  com- 
mentary and  defence  of  the  anti-papal  laws.  Comp.  also,  his  supplements 
(1886  and  1S87).  Dr.  Kries,  "  Die  Preussische  Kirchengesctzgebung,"  etc., 
(Danzig,  1SS7).  "  Les  discours  dc  M.  Ic  Prince  dc  Bismarck,"  vol.  iv.,  under 
the  separate  title:  "  Kulturkampf.  Ilistoire  du  conflict  politiquc-clcrical  en 
Prusse  et  en  Allemagne  dcpuis  son  origine  jus  qu"  i  ce  jour  (1S71-1S87),"  etc., 
Berlin,  18S7.  Contains  all  the  documents.  K.  M.ijunke  (R.  Cath.),  "  Gc- 
schichte  des  Culturkampfcs  in  Preussen-Dcutchland,"  Padcrbom,  18S7.  On 
the  general  subject,  see  K.  Heinrich  Oeffcken,  "  St.iat  und  Kirchc  in  ilircm 
Verhiiltniss  geschichllich  cntwicktlt,"  Berlin,  1875.     Wilhclm  Martens,  "Die 


I04  CJiurch  and  State  in  the  United  States. 

Prince  Bismarck,  the  Luther  of  regenerated  Germany, 
who  once  protested  that  he  would  "  never  go  to  Canossa," 
made  peace  with  Pope  Leo,  meeting  him  half-way,  but 
securing  in  return  his  political  services  in  the  septennate 
conflict  of  1887  against  the  threatening  war  of  revenge  from 
France  and  the  socialistic  revolution  from  within.  The  Pope 
sent  to  the  Protestant  heretic  the  Christ-order,  a  distinction 
shown  only  to  most  eminent  Catholic  celebrities.  Leo  out- 
bismarcked  Bismarck,  and  Bismarck  out-poped  the  Pope. 

For  the  present  the  Culturkampf  has  ended  with  a  sub- 
stantial victory  of  the  Roman  Church  under  the  wise  and 
moderate  statesmanship  of  Leo  XIIL  She  is  now  stronger 
than  ever  in  Germany;  for  how  long,  God  only  knows. 
Abuse  of  power  will  inevitably  provoke  reactions. 

The  Evangelical  Church,  unfortunately,  remains  in  Prus- 
sia, as  in  all  Germany,  an  humble  servant  of  the  state,  and  is 
much  weakened  by  internal  dissensions.  The  success  of  the 
Roman  Church  has  raised  a  new  party  among  the  conserva- 
tive and  churchly  members  of  the  Landtag,  who  demand 
from  the  government  more  liberty  and  more  money,  but 
without  much  prospect  of  getting  either.  The  Protestant 
church  cannot  expect  to  secure  the  right  of  self-government 
without  discharging  the  duty  of  self-support. 

During  the  course  of  this  memorable  conflict  between  the 
Prussian  government  and  the  Roman  curia  the  separation 
of  church  and  state  seems  not  to  have  occurred  to  the  cul- 
tured leaders  of  either  party  as  a  possible  solution  of  the 
problem.  To  be  sure,  it  would  be  contrary  to  Prussian  tra- 
ditions, and  involve  two  great  sacrifices  :  the  state  would 
have  to  surrender  its  entire  control  over  the  churches,  and 
the  churches  would  have  to  surrender  all  claim  upon  the  sup- 
port of  the  state,  whether  the  state  were  willing  to  restore 
the  church  property  to  its  rightful  owner  or  not.     Perhaps, 

Beziehungen  der  Ueberordnung,  Nebenordnung  und  Unterordnung  zwischen 
Kirche  und  Staat,"  Stuttgart,  1877.  Meyer,  "  Lehrbuch  des  deutschen  Staats- 
rechtes,"  Leipzig,  1878,  p.  606  sqq.  The  ablest  discussion  of  the  Culturkat?ipf 
in  the  English  language,  to  my  knowledge,  is  by  Prof.  John  W.  Burgess,  "  The 
Culturconflict  in  Prussia,"  in  the  Political  Science  Quarterly  for  June,  1887,  p. 
313  sqq.  (New  York). 


Religious  Liberty  in  Moderti  Europe.  105 

after  all,  it  may  come  to  such  a  separation  in  due  time.  It 
would  save  the  state  and  the  church  the  troubles  which  in- 
evitably arise  from  the  collision  of  the  two  powers. 

Scandittavia. 

Denmark,  Sweden,  and  Norway  accepted  the  Lutheran 
creed  with  an  episcopal  organization.  The  great  mass  of  the 
people  are  still  strongly  attached  to  the  Lutheran  Church, 
and  honor  it  by  their  intelligence,  industry,  virtue,  and 
piety,  but  are  growing  more  liberal.  Formerly  every  other 
religion  was  prohibited,  on  pain  of  confiscation  and  exile. 
Christina,  the  daughter  of  the  illustrious  Gustavus  Adolphus, 
the  Protestant  hero  of  the  Thirty  Years'  War,  lost  her 
crown  and  home  by  embracing  the  Roman  Catholic  faith. 

At  present  the  Lutheran  Church  is  still  the  state  church, 
and  the  kings  of  Denmark  and  Sweden  must  belong  to  it, 
but  other  churches  are  tolerated  as  "sects,"  and  the  civil 
disabilities  have  been  gradually  removed,  in  Denmark,  by 
the  constitution  of  June  5,  1849,  modified  in  1855,  1863, 
and  July  28,  1866  ;  in  Sweden  and  Norway,  by  special  laws 
in  i860,  1868,  and  1873.  The  dissenters  (Roman  Catholics, 
Reformed,  Baptists,  Methodists,  Irvingites,  Jews,  and  Mor- 
mons) embrace  only  about  one  per  cent,  of  the  population 
in  Denmark.  But  in  Sweden  the  Baptists  have  grown  very 
rapidly  zvitliin  the  national  church,  and  prefer  to  remain 
(like  the  Pietistic  sects  in  Wiirttemberg)  an  ccclcsiola  in  ccclc- 
siUy  because  they  have  thus  more  liberty  than  outside  of  it. 
As  a  separate  body  they  would,  under  the  present  dissenter 
law,  have  to  purchase  independence  by  asking  recognition 
from  the  government,  and  subjecting  themselves  to  its  police 
regulations;  while  now  they  are  allowed  to  build  chapels, 
hold  separate  meetings,  and  baptize  their  converts  by  im- 
mersion, without  disturbance,  on  condition  of  paying  ta.xes 
for  the  support  of  the  state  churcii.  This  anomalous  con- 
dition will  probably  end  in  secession  as  soon  as  the  dissenter 
law  is  more  liberalized.  The  Baptists  in  Sweden  number  in 
this  year  1887  over  31,000  members,  and  have  a  theological 
school  at  Stockholm. 


io6  Church  and  State  in  the  United  States. 

The  Methodists  in  Sweden  are  a  foreign  plant,  and  derive 
their  chief  support  from  America,  but  commend  themselves 
by  their  zeal  for  vital,  practical  piety/ 

A  iistria. 
/Austria,  under  the  rule  of  the  Habsburg  dynasty,  has  al- 
ways been  the  political  stronghold  of  Romanism  in  Germany, 
and  granted  only  a  very  limited  toleration  to  Protestants  of 
the  Augsburg  and  the  Helvetic  Confessions,  and  to  the 
Socinians  (Unitarians)  in  Transylvania. 

Since  1848  she  has  entered  upon  a  career  of  revolution 
and  progress.  A  law  of  1868  grants  civil  marriage  and  full 
liberty  of  religion,  but  within  the  limits  of  the  confessions  that 
are  recognized  by  the  government.  The  Roman  Church  re- 
mains the  state  religion  and  controls  politics.  It  depends  upon 
the  prevailing  sentiment  of  the  provincial  and  local  author- 
ities how  far  the  letter  of  the  constitution  can  be  executed 
or  evaded.  In  1879  the  General  Evangelical  Alliance  Confer- 
ence of  Basel  senta deputation  to  the  Emperor  Franz  Josef  I. 
in  behalf  of  persecuted  Protestants  in  Bohemia,  and  succeeded. 

Since  1867  Austria  is  a  bipartite  state  of  Austria-Hungary, 
with  a  double  legislature  and  double  cabinet.  In  Austria 
proper,  Romanism  is  still  all-powerful.  The  government 
supports  also  Lutheran  and  Calvinistic  ministers,  but  very 
scantily,  and  does  not  even  admit  the  Protestant  theological 
faculty  of  Vienna  to  a  place  in  the  corporation  of  the  Uni- 
versity and  the  use  of  its  magnificent  building. 

In  Hungary  there  is  no  state  religion,  and  consequently 
more  liberty.  The  Reformed  (Calvinistic)  Church  is  strong 
among  the  Magyars,  and  the  Lutheran  among  the  Germans  ; 
but  the  Roman  Catholic  is  richer  and  stronger  than  both. 
Besides  there  are  Greeks,  Armenians,  Jews,  and  "  Non-Chris- 
tians." 

Holland. 

Holland  stands  very  high  in  the  history  of  religious  liberty. 
She  achieved  by  her  bravery  and   endurance   her  indepen- 

'  "  Of  all  sectarian  churches,"  says  an  orthodox  Swedish  Lutheran  writer 
(in  Herzog,  vol.  xiii.,  743),  "  Methodism,  by  its  open  visor  and  moral  earnest- 
ness, has  acquired  the  greatest  esteem  in  Sweden." 


Religious  Liberty  in  Modern  Europe.  107 

dence  from  the  terrible  despotism  of  Spain,  which  killed 
more  Protestants  than  heathen  Rome  killed  Christians  under 
Nero  or  Decius  or  Domitian.  She  sheltered  the  exiled  band 
of  the  "  Pilgrim  Fathers  "  before  their  departure  for  the  bleak 
coasts  of  New  England.  It  is  true,  the  Calvinism  of  the 
Synod  of  Dort  (1619),  in  compact  with  Prince  Maurice,  is 
responsible  for  the  deposition  and  exile  of  about  two  hun- 
dred Arminian  clergymen  and  of  the  great  statesman  and 
scholar,  Hugo  Grotius.  But  after  the  death  of  Maurice 
(1625)  the  Arminians  were  recalled  and  allowed  to  build 
churches  in  every  town. 

The  present  kingdom  of  the  Netherlands,  according  to  the 
terms  of  the  constitution  of  November  3,  1848,  grants  entire 
liberty  of  conscience  and  complete  civil  equality  to  the 
members  of  all  religious  confessions.  The  royal  family  and 
a  majority  of  the  inhabitants  belong  to  the  Reformed 
Church,  which  is  the  national  church  and  supported  by  the 
government  ;  but  the  Roman  Catholic  Church,  and  several 
English  Presbyterian  ministers  in  the  sea-ports,  receive  like- 
wise government  aid.  The  national  Reformed  Church  has 
given  up  the  canons  of  Dort  and  allows  as  wide  a  latitude  of 
thought  to  her  theological  professors  and  ministers  as  Prot- 
estant Germany  and  Switzerland.  Hence  a  number  of  strict 
Calvinists  have  seceded  and  organized  a  free  church  (1834) 
under  the  name  of  the  "  Christian  Reformed  Church,"  which 
numbers  several  hundred  congregations.  In  1857  the  gov- 
ernment, under  the  combined  influence  of  the  Romanists 
and  Liberals,  banished  all  religious  instruction  from  the 
schools,  and  in  1876  it  abolished  the  theological  faculties  in 
the  universities,  retaining  only  such  chairs  as  teach  the  his- 
tory and  philosophy  of  religion,  and  leaving  the  provision 
for  special  theological  instruction  to  the  National  Synod  out 
of  funds  granted  to  it.  When  the  Synod  filled  the  professor- 
ships with  Rationalists,  the  orthodox  Calvinistic  party  with- 
in the  National  Church  established  a  Free  Reformed  Univer- 
sity at  Amsterdam  (1880).  The  same  party  has  founded  all 
over  Holland  a  large  number  of  free  schools  in  which  religion 
is  taught. 


I08  Church  and  State  in  the  United  States. 

France^ 

The  Latin  races  of  Southern  Europe  rejected  the  Refor- 
mation, and  reaped  the  Revolution.  They  preferred  the 
yoke  of  popery  to  the  Hberty  of  the  gospel,  and  ran  into 
the  opposite  extreme  of  infidelity.  They  aspire  to  political 
liberty,  but  ignore  religious  liberty  which  is  the  strong  pillar 
of  the  former.  The  French  took  the  lead  in  crushing  Prot- 
estantism by  despotism,  and  crushing  despotism  by  revolu- 
tions. They  swing  from  the  pope  to  Voltaire  and  back 
again  to  the  pope,  but  never  stop  half  way.  They  are  the 
most  polished,  the  most  brilliant,  and  the  most  changeable 
nation  of  Europe. 

The  Edict  of  Nantes,  which  secured  a  legal  existence  to 
Protestants,  was  revoked  by  Louis  XIV.,  and  the  Huguenots 
were  forced  to  renounce  their  faith,  or  to  leave  their  native 
land.  But  Protestantism  survived  the  dragonades  as  "  a 
church  of  the  desert,"  regained  toleration  in  1787,  and  has 
remained  ever  since  an  intelligent,  moral,  industrious,  and 
influential,  though  small,  minority  in  France. 

Since  the  radical  upheaval  of  society  in  1789,  France  has 
lived  under  nine  constitutions  (1791.  1793,  I795>  I799»  1814, 
1830,  1848,  1852,  1875). 

The  principle  of  limited  toleration  has  been  acknowledged 
by  all  governments  since  Napoleon,  but  in  subordination  to 
the  sovereignty  of  the  State.  Religious  liberty  as  understood 
in  England  and  America  does  not  exist  in  France  to  this 
day.  The  advocates  of  political  liberty  (except  among 
Protestants)  are  mostly  indifferent  or  hostile  to  religion. 
Anti-clericalism  with  them  means  anti-religionism.  The  gov- 
ernment supports  and  thereby  controls  a  certain  number  of 
recognized  religions. 

*  F.  A.  Helie,  "  Les  constitutions  de  la  France,"  Paris,  1875.  A.  Bard  et 
P.  Robiquet,  "  La  constitution  franfaise  de  1S75,"  Paris,  1S7S.  E.  Bidault, 
"  Assemblees  legislatives  de  la  France,  1789-1876,"  Paris,  1S79.  G.  Demom- 
bynes,  "  Constitutions  Europeennes,"  Paris,  l83i,  2  vols.  E.  de  Pressense, 
'*  L'  eglise  et  la  revolution  frangaise,"  Paris,  1867,  and  "  La  liberte  religieuse 
en  Europe  depuis  1870,"  Paris,  1874.  Francis  Lieber  gives  several  French 
constitutions,  "On  Civil  Liberty  and  Self-Government"  (Philad.,  1859),  p. 
536  sqq. 


Religious  Liberty  in  Modern  Europe.  109 

This  system  dates  from  Napoleon  I.,  the  greatest  military 
genius  and  despot  on  a  democratic  basis.  He  restored,  in 
a  measure,  the  Roman  church  in  France  after  its  overthrow 
by  the  madness  of  the  Revolution.  He  was  too  much  of 
a  statesman  not  to  see  the  absolute  necessity  of  religion 
for  society.  But  he  felt  no  personal  interest  in  it,  and 
viewed  it  merely  from  the  military  and  political  point  of 
view.  "  Je  ne  vois pas,''  he  said,  "  dans  la  religion  le  viystere 
de  r incarnation,  vtais  le  mystere  de  I'ordre  social."  In 
Egypt  he  supported  Mohammedanism,  and  placed  the 
Koran  along-side  of  the  New  Testament  under  the  heading, 
"  Politics."  The  priests  he  viewed  as  a  sort  of  black  policemen 
and  as  " professeurs  d'  obdissance  passive."  Accordingly  he 
recognized  the  Roman  Catholic  religion  as  the  religion  of 
the  great  majority  of  Frenchmen,  and  also  the  National  Re- 
formed and  Lutheran  Churches.'  He  made  scanty  provision 
for  their  support  from  the  national  treasury,  by  which  he 
kept  them  subject  to  his  power.  To  separate  church  and 
state  after  the  American  fashion  would  have  limited  his  sov- 
ereignty. He  would  not  listen  to  it  for  a  moment.  He  con- 
cluded a  concordat  with  Pope  Pius  Vn.(July  15,  1801),  and 
secured  his  consent  to  crown  him  emperor  (Dec.  2,  1804); 
but  he  deprived  him  of  his  temporal  power  (May  17,  1809), 
and  made  him  his  prisoner  at  Fontainebleau  (1812).  His 
ambition  was  to  rule  the  whole  world  from  Paris,  with  the 
Pope  residing  there  as  his  humbleservant.  But  the  haughty 
structure  collapsed  like  the  tower  of  Babel. 

After  the  fall  of  Napoleon  came  the  legitimist  and  papal 
reaction  of  the  Bourbons,  who,  like  the  Stuarts,  never  forgot 
and  never  learned  any  thing,  and  who,  like  the  Stuarts,  by 
their  reactionary  and  selfish  policy  prepared  their  own  second 
and  final  overthrow. 

The  reign  of  the  house  of  Orleans,  which  succeeded  that 
of  the  Bourbons,  was  a  limited  constitutional  monarchy 
and  a  compromise  between  the  Revolution  and  the  Restora- 

'  Against  the  protest  of  Pope  Pius  VII.,  whose  sccretan*,  Consalvi,  made 
during  the  negotiations  with  Napoleon  the  characteristic  admission  :  "  //  est 
de  Vesssence  de  la  religion  catholique  d'etre  intolerantf."  llaussonville, 
"  Leglise  romaine  et  le  premier  empire,"  vol.  i.  308. 


1 10  Church  and  State  in  the  United  States. 

tion.     It  acknowledged  to  a  limited  extent  the  principle  of 
religious  liberty. 

The  charter  of  August  14,  1830,  signed  by  King  Louis 
Philippe  and  his  prime  minister,  Guizot  (a  Protestant),  pro- 
vides that  "  each  one  may  profess  his  religion  with  equal 
liberty,  and  shall  receive  for  his  religious  worship  the  same 
protection  "  (Article  V.),  and  that  "  the  ministers  of  the 
catholic,  apostolic,  and  Roman  religion,  professed  by  the 
majority  of  the  French,  and  those  of  other  Christian  wor- 
ship, receive  stipends  from  the  public  treasury  "  (Article  VI.). 

The  constitution  of  the  second  Republic  of  1848,  which 
followed  the  dethronement  of  Louis  Philippe,  guarantees 
that  "  every  one  may  freely  profess  his  own  religion,  and 
shall  receive  from  the  state  equal  protection  in  the  exercise 
of  his  worship.  The  ministers  of  the  religions  at  present 
recognized  by  law,  as  well  as  those  which  may  be  hereafter 
recognized,  have  a  right  to  receive  an  allowance  from  the 
state  "(Chap.  II.,  Art.  VII.). 

The  restoration  of  the  Empire  by  Napoleon  III.  returned 
to  the  policy  of  the  first  Napoleon,  but  gave  greater  power  to 
the  Pope,  and  forced  a  new  organization  upon  the  recognized 
Protestant  churches  (1852).  Like  his  uncle,  he  cut  his  own 
throat  by  his  overreaching  ambition,  and  went  down  with 
his  empire  at  the  battle  of  Sedan  (Sept.  2,  1870).  His  only 
son  and  heir  perished  among  the  savages  in  Africa.  His 
widow  still  lives,  a  modern  Niobe,  "  crownless  and  childless 
in  her  voiceless  woe." 

A  third  Republic  rose  from  the  ruins  of  the  second  Em- 
pire (1870),  and  has  lasted  much  longer  than  the  first  and 
second.  The  constitution  adopted  February  25,  1875,  and 
still  in  force,  says  nothing  on  the  subject  of  religious  liberty, 
but  the  former  system  of  caesaro-papal  rule  and  state  pat- 
ronage is  continued.  The  Roman  Church,  the  Reformed 
(Calvinistic),  and  the  Lutheran  Churches,  and,  since  1841, 
also  the  Jewish  synagogue,  and,  in  Algiers,  the  Mohamme- 
dan religion,  are  recognized  by  law  and  supported  from  the 
national  treasury,  but  at  the  expense  of  their  independence. 
Under  the  successful  administration  of  Thiers,  chiefly 
through  the  influence  of  Guizot,  the  Reformed  Church  was 


Religions  Liberty  in  Modern  Europe.  \  \  \ 

permitted  to  hold  an  official  synod  in  1872,  but  the  govern- 
ment refused  to  sanction  its  decisions.  The  synods  held  since 
that  time  are  "  unofficial,"  and  have  no  legislative  power. 

In  the  meantime  free  churches  have  sprung  up,  which 
support  and  govern  themselves,  and  are  tolerated.  The 
chief  among  them  (since  1849)  i^  ^^^^  "  Union  dcs  (fglises 
H'angcliqnes  de  France^'  usually  called  "  /'  eglise  libreT  The 
M'AU  "  missions  "  (since  1871)  are  not  organized  churches 
and  confine  themselves  to  preaching  the  gospel;  they  are 
required  by  the  police  to  abstain  from  politics  and  from  at- 
tacks upon  the  Catholic  Church.  Other  denominations,  the 
Episcopalian,  Presbyterian,  Wesleyan,  Baptist,  etc.,  are  of 
foreign  origin  and  confined  to  a  few  congregations  in  Paris. 

Tlifi  French  Republic  has  manifested  a  strong  anti-clerical 
spirit  and  shown  no  favor  to  any  religion.  In  this  respect 
it  contrasts  very  unfavorably  with  the  American  Republic. 
The  possibilities  for  the  future  of  France  seem  to  be  a  conser- 
vative republic,  or  a  socialistic  revolution,  or  a  restoration  of 
the  Orleans  dynasty.  The  sympathies  of  America  arc  with 
a  conservative  republic. 

We  may  add  from  the  "  Statesman's  Year-Book "  for 
1887  (pp.  (:)6,  6y),  the  following  additional  information  : 

"  The  population  of  France,  at  the  census  of  December,  1881,  consisted  of 
29,201,703  Roman  Catholics,  being  78.50  per  cent,  of  the  total  population  ;  of 
692,800  Protestants,  or  1.8  per  cent,  of  the  population,  as  compared  with  584,- 
757  in  1872  ;  of  53,446  Jews,  and  7,684,906  persons  'who  declined  to  make 
any  declaration  of  religious  belief.'  This  was  the  first  census  at  which 
'  non-profcssants  '  w'cre  registered  as  such.  On  former  occasions  it  had  been 
customary  to  class  all  who  had  refused  to  state  what  their  religion  was,  or  who 
denied  having  any  religion,  as  Roman  Catholics.  The  number  of  persons  set 
down  as  belonging  to  '  various  creeds  '  was  33,042. 

"  All  religions  are  equal  by  law,  and  any  sect  which  numbers  100,000  adhe- 
rents is  entitled  to  a  grant  ;  but  at  present  only  the  Roman  Catholics,  Protes- 
tants, Jews,  and  Mussulmans  (Algeria,  etc.)  have  state  allowances.  In  the 
Budget  for  1887  these  grants  were  as  follows  : 

Administration  ........         257,800 


Roman  Catholic  worship,  etc,    . 
Protestant  worship,  etc. 
Jewish  worship,  etc.  .... 
Protestant  and  Jewish  places  of  worship 
Mussulman  worship   .... 

Total 


44.327-123 

1,551,600 

180,900 

40,000 

216,340 

46.573.763 


112  Church  and  State  m  the  U?iited  States. 

"  There  are  17  archbishops  and  67  bishops  ;  and  of  the  Roman  Catholic 
Church  on  January,  1S84,  the  secular  clergy  numbered  in  all  54,513,  besides 
10,464  pupils  in  the  ecclesiastical  seminaries.  The  value  of  the  total  gifts  and 
legacies  made  to  the  Church  during  the  present  century,  up  to  I882,  is  23,976,- 
733  francs.  The  Protestants  of  the  Augsburg  Confession,  or  Lutherans,  are, 
in  their  religious  affairs,  governed  by  a  General  Consistory,  Vi'hile  the  members 
of  the  Reformed  Church,  or  Calvinists,  are  under  a  council  of  administration, 
the  seat  of  which  is  at  Paris.  In  1884  there  were  700  Protestant  pastors, 
with  27  assistant  preachers,  and  57  Jewish  rabbis  and  assistants." 

Be/g'tU7n. 

Belgium,  which  was  previously  a  part  of  Holland,  has 
formed  since  1830  an  independent  state,  and  is  a  constitu- 
tional, representative,  and  hereditary  monarchy.  Nearly  the 
whole  population  is  nominally  Roman  Catholic,  and  divided 
into  six  dioceses  (Malines,  Bruges,  Ghent,  Liege,  Namur, 
Tournai).  There  is  a  constant  conflict  going  on  between  the 
ultramontane  and  the  liberal  Catholics.  The  Protestants 
number  only  15,000,  and  the  Jews  3,000. 

The  constitution  of  1831  guarantees  full  religious  liberty. 
The  government,  like  that  of  France,  pays  a  part  of  the  sal- 
ary to  Roman  priests,  Protestant  ministers,  and  Jewish  rab- 
bis. But  there  is  also  a  free  Reformed  Church  in  Belgium 
similar  to  that  in  France.  It  is  partly  supported  by  friends 
from  abroad,  and  does  faithful  missionary  work  among  the 
lower  Roman  Catholic  population. 

Italy. 

The  year  1848  forms  a  turning-point  in  the  history  of 
Italy.  The  fundamental  statute  of  Sardinia  {statiito  fonda- 
mentale  del  regjio),  proclaimed  by  King  Charles  Albert  at 
Turin,  March  4,  1848,  declares  the  Roman  Catholic  Church 
to  be  the  only  state  religion,  but  grants  toleration  to  other 
existing  forms  of  worship  within  the  laws.'  The  unification 
of  Italy,  with  Rome  as  the  capital,  in  1870,  extended  the 
force  of  this  statute  over  the  whole  kingdom.  Since  that 
time  the  legislature  by  several  acts  has  diminished  the  power 

'  "  La  religione  Catholica  Apostolica  Romana  }  la  sola  religione  dello  stato. 
Gli  altti  culti  ora  existenti  sono  tollerati  conformemente  alle  leggi."  See  Ga- 
briello  Carnazza  :     "  II  Diritto  Costituzionale  Italiano,"  Catania,  1886,  p.  331. 


Religious  Liberty  in  Modern  Europe.  113 

of  the  church  and  clergy,  and  subordinated  them  to  the  au- 
thority of  the  civil  government. 

Cavour,  the  statesman  ;  Mazzini,  the  dreamer ;  Garibaldi, 
the  hero  ;  and  Victor  Emanuel,  the  king,  of  regenerated 
Italy,  were  in  favor  of  full  religious  liberty,  though  more 
from  indifference  than  from  an  enlightened  positive  faith. 
A  large  number  of  educated  men  in  Italy,  as  in  all  the  Latin 
races,  are  indifferent  and  skeptical  ;  but,  knowing  only  the 
Roman  religion,  and  wishing  to  be  on  the  safe  side  in  the 
other  world,  usually  send  for  the  priest  on  their  death-bed. 
Even  Voltaire  did  so. 

Although  toleration  is  a  poor  concession,  it  marks  a  great 
advance  beyond  the  former  state  of  disgraceful  intolerance, 
when  as  late  as  1852  the  innocent  Madiai  family  were  im- 
prisoned in  Florence  for  no  other  crime  than  holding  prayer- 
meetings  and  reading  the  Scriptures  in  the  vernacular  ;  when 
the  Bible  could  not  pass  the  custom-house  in  the  Pope's  do- 
minions ;  and  when  the  foreign  Protestant  residents  of  Rome 
were  not  allowed  to  worship  God  except  in  strict  privacy,  or 
in  a  house  behind  a  barn  outside  of  the  city  walls. 

The  statute  of  1848  emancipated  the  faithful  and  much 
persecuted  Waldenses  ;  enabled  them  to  preach  in  Italian, 
and  to  come  out  of  their  mountain  fastnesses  in  Piedmont. 
Since  1870  there  have  been  organized  at  least  a  dozen  Prot- 
estant congregations  in  the  city  of  Rome  itself,  which  repre- 
sent the  Waldensian,  the  Free  Italian  Church  {cJiicsa  libera), 
the  English  and  American  Episcopal,  the  Scotch  Presbyte- 
rian, the  Methodist,  the  Baptist,  the  German  Evangelical, 
and  the  French  Reformed  denominations.  Such  a  variety  is 
very  confusing  to  the  mind  of  an  Italian  Catholic  is  who  dis- 
contented with  Romanism,  and  yet  used  to  the  idea  of  the 
visible  unity  of  the  church. 

The  total  number  of  Protestants  in  Italy  at  the  census  of 
1881  amounted  (in  a  population  of  nearly  thirty  millions)  to 
62,000,  of  whom  22,000  belonged  to  the  Waldensian  Church, 
and  30,000  to  foreign  Protestant  bodies. 

The  kingdom  of  Italy  sustains  a  peculiar  relation  to  the 
papacy.     It  has  destroyed  its  temporal  power  and  thereby 


1 14  CJiJirch  and  State  in  the  United  States. 

broken  the  backbone  of  hierarchical  state-churchism.  It  has 
conquered  the  papal  territory,  made  the  papal  capital  its  own 
capital,  and  thereby  incurred  the  curses  of  the  Pope  who  will 
forever  protest  against  the  robbery  of  the  patrimony  of  St. 
Peter,  in  spite  of  the  almost  unanimous  opposition  of  his 
own  former  subjects  to  the  continuance  of  his  secular  rule.' 

But  by  a  decree  of  October  9,  1870,  and  the  laws  of  Decem- 
ber 31,1 870,  and  May  1 3, 1 87 1 ,  Italy  guarantees  to  the  supreme 
pontiff  the  dignity,  inviolability,  and  all  the  personal  preroga- 
tives of  a  sovereign  with  the  first  rank  among  Catholic  mon- 
archs  ;  untrammelled  correspondence  with  the  Catholic  hier- 
archy throughout  the  world  ;  the  perpetual  possession  of  the 
Vatican  and  Lateran  palaces  and  castel-Gandolfo,  with  all  the 
edifices,  museums,  libraries,  and  gardens  belonging  thereto  ; 
freedom  from  taxation  ;  and  an  irrevocable  annual  dotation 
of  3,225,000  lire  or  francs  from  the  public  treasury.^ 

The  Pope  has  refused  the  donation,  and  can  afford  to  live 
on  the  Peter's  penny  and  other  voluntary  contributions  of 
the  faithful. 

The  political  regeneration  and  unification  of  Italy  has  not 
materially  changed  the  ruling  religion  of  Italy,  but  has  estab- 
lished a  separation  between  the  civil  and  spiritual  powers  and 
confined  the  papacy  to  the  latter.  Politically,  the  modern 
Italians  are  Protestants,  and  disregard  the  Pope  in  temporal 
matters  ;  religiously,  they  are  Catholics,  and  obey  him  as  the 
head  of  the  church. 

Spaiti  and  Portugal. 

/  Spain,  the  land  of  sombre  cathedrals  and  bloody  bull-rings, 
the  home  of  the  Inquisition  and  Ignatius  Loyola,  is  more 
intensely  Roman  Catholic  and  mediaeval  than  Italy,  and  ow- 
ing to  its  comparative  isolation,  is  less  influenced  by  modern 
ideas  of  progress.     Cardinal  Cuesta,  Archbishop  of  Santiago, 

'  In  the  plebiscite,  Oct.  2,  1870,  the  population  of  the  Papal  States  voted 
with  an  overwhelming  majority  for  annexation  to  the  kingdom  of  Italy.  The 
number  of  registered  voters  was  167,548  ;  the  numberof  actual  voters,  135,291; 
of  these  133,681  voted  yea,  1,507  no  ;  103  votes  were  thrown  out  as  invalid. 
Schulthess,  "  Europaischer  Geschichtskalender  "  for  1870  (Nordlingen,  1871), 
.p.  403.  '  Schulthess,  /.  c,  p.  410  sqq. 


Religious  Liberty  in  Modern  Europe.  115 

in  a  popular  catechism,  1871,  defines  Protestantism  to  be 
"not  only  a  veritable  Babel,  but  a  horrible  theory,  and  an 
immoral  practice  which  blasphemes  God,  degrades  man,  and 
endangers  society."  '  The  Reformation  which  raised  its  head 
in  the  middle  of  the  sixteenth  century,  was  completely 
crushed  out  by  fire  and  sword  under  Philip  II.,  and  has  only 
recently  ventured  to  reappear.  When  Matamoras,  Carrasco, 
and  a  few  other  converted  Bible  readers  assembled  for  reli- 
gious devotions,  they  were  thrown  into  prison  and  condemned 
to  the  galleys,  but  in  consequence  of  a  strong  protest  by  an 
international  deputation  of  the  Evangelical  Alliance,  the 
sentence  of  penal  servitude  was  changed  into  exile  (1863).  A 
few  years  afterwards  the  misgovernment  and  immorality  of 
the  bigoted  Queen  Isabel  1 1. resulted  in  her  expulsion  from  the 
throne  (1868),  and  a  succession  of  revolutions  and  civil  wars. 

The  Constitution  of  1869  declares,  in  Article  XXL,  the 
Catholic  Apostolic  Roman  Religion  to  be  tlie  religion  of  the 
state,  and  imposes  upon  the  nation  the  obligation  of  main- 
taining its  worship  and  its  ministers.  This  is  old  Spanish. 
The  second  clause  grants,  for  the  first  time,  toleration  iox public 
and  private  worship  to  foreigners  residing  in  Spain,  subject 
to  the  general  rules  of  morals  and  right.  A  third  clause 
applies  the  same  toleration  to  such  Spaniards  (if  there  should 
be  any)  as  may  profess  another  religion  than  the  Catholic' 

'  Bishop  Manuel  of  the  island  of  Minorca  issued  a  manifesto.  February  15, 
1876,  in  which  he  demanded  the  expulsion  of  the  children  of  Protestant  parents 
from  the  public  schools,  or  the  compulsory  memorizing  of  Cardinal  Cuesta's 
Catechism  against  "  the  poison  of  Protestantism."  Schulthess,  "  Europ. 
Geschichtskalender  "  for  1876,  pp.  271  sq. 

*  "  Art.  XXI.  La  religion  catdlica,  apostdlica,  romana  es  la  del  Estado.  La 
Nacion  se  obliga  d  mantener  el  ctilto  y  los  ministros  de  la  religion  catdlica. 

' '  El  ejercicio  publico  6 privado  de  cualquiera  otro  culto  queda garantido  d  todos 
los  extranjeros  rcsidcntes  en  Espana,  sin  mds  limitaciones  que  las  rcglas  univer- 
sale s  de  la  moral  y  del  dcrecho. 

"  Si  algunos  espaiioles  profesaren  otra  religion  que  la  catdlica,  es  aplicable  d  lot 
mismos  todo  lo  dispuesto  en  el pdrafo  anterior."  See  "  Constiluciones  V'igentes 
de  los  principales  cstados  de  Europa."  Por  R.  C.  Ortiz  y  II.  A.  de  Aparicio. 
Madrid,  1873,  2  vols.,  vol.  ii.,  308.  Comp.  Schulthess  "  Europaischcr  Ge- 
schichtskalender," 1870,  pp.  2qqsq.  The  articles  XX.  and  XXI.  were  adopted 
by  the  Cortes  May  5,  1869,  by  a  majority  of  164  to  4.  The  entire  Constitution 
was  adopted  June  ist  by  a  majority  of  214  to  56  votes. 


Ii6  CJmrch  mid  State  in  the  United  States. 

This  was  a  small  breach  into  the  fort  of  Roman  intolerance 
and  exclusiveness.  Another  step  in  advance  was  taken  by 
the  Constitution  adopted  under  the  reign  of  Alphonso  XIL, 
July  I,  1876,  which  is  still  in  force.  It  reasserts  in  Article 
XI.  the  first  clause  of  Article  XXI.  of  the  former  constitution 
that  the  Roman  Catholic  Church  is  the  religion  of  the  state, 
and  entitled  to  the  support  of  the  nation.  But  the  next 
clause  extends  the  religious  liberty  granted  to  foreign  resi- 
dents to  all  non-CatJiolics,  in  these  words:  "  No  person  shall 
be  molested  in  the  territory  of  Spain  for  his  religious  opinions, 
nor  for  the  exercise  of  his  particular  religious  worship,  sav- 
ing the  respect  due  to  Christian  morality."  Very  good  as 
far  as  it  goes.  But  this  concession  is  weakened  and  almost 
neutralized  by  the  addition  :  "  Nevertheless,  no  other  cere- 
monies, nor  manifestations  in  public  will  be  permitted  than 
those  of  the  religion  of  the  state."  '  Thus  the  Constitu- 
tion of  1876  restricts  the  liberty  of  non-Catholic  worship 
to  private  houses.  No  church  or  chapel  looking  like  a 
house  of  God,  no  tower,  no  bell,  no  procession,  no  public 
announcement  is  permitted  by  law,  and  Protestant  preachers 
and  evangelists  depend  altogether  upon  the  tender  mercies 
of  the  local  magistrate,  priests,  and  people. 

Nevertheless  they  continue  their  work  under  these  disad- 
vantages, in  about  fifty  humble  places  of  worship  in  Madrid, 
Barcelona,  Seville,  and  other  cities  where  more  liberality 
prevails  than  in  ignorant  and  bigoted  country  districts.  At 
the  census  of  1877  ^^  was  found  that  60  per  cent,  of  the  adult 
population  could  not  read. 

'  The  Xlth.  article  is  a  compromise  between  the  Romanists  and  the  Liberals, 
and  was  adopted  by  a  vote  of  220  against  84.  All  amendments  in  favor  of  ab- 
solute religious  uniformity  and  exclusiveness  were  voted  down  by  226  against 
39  ;  and  all  amendments  for  unqualified  religious  liberty  were  likewise  voted 
down  by  163  against  12.  See  Schulthess,  "  Europaischer  Geschichtshalender  " 
for  1S76.  Nordlingcn,  1877,  P-  277.  I  quote  the  whole  article  in  the  original 
as  published  in  "  Las  Novedades,"  Nueva  York,  No.  64,  19  de  Julio,  1876  : 

"  Art.  XL  La  religion  catdlica,  apostdlica,  roviana  es  la  del  Estado.  La 
nacion  se  obliga  a  mantcner  el  culto  y  sus  ministros. 

"  Nadie  serd  violestado  ett  el  teritorio  espanol  por  sus  opiniones  religiosas,  ni 
por  el  ejercicio  de  su  respectivo  ctilto,  salvo  el  respeto  debido  d  la  moral  cristiana. 

"  No  se  perntitirdn,  sin  embargo,  otras  ceremonias  ni  manifesiacionts  ptiblicas 
que  las  de  la  religion  del  Estado. " 


Religious  Liberty  in  Modern  Europe,  117 

On  the  other  hand  the  Spanish  government  has  greatly 
diminished  the  material  resources  of  the  state  church.  By- 
two  decrees  of  the  Cortes,  passed  July  23,  1835,  ^"^^  March 
9,  1836,  all  monastic  establishments  were  suppressed,  and 
their  property  confiscated  for  the  benefit  of  the  nation. 

Portugal  knows  and  tolerates  no  other  religion  besides  the 
Roman  Catholic,  except  among  foreign  residents  who  may 
worship  privately  in  their  houses,  but  not  in  a  church.' 

Greece. 
The  kingdom  of  the  Hellenes,  which  gained  its  independ- 
ence in  1830,  recognizes  the  Greek  Orthodox  Church  as  the 
state  religion,  but  the  Constitution  of  Oct.  29,  i  S64,  guarantees 
complete  toleration  and  liberty  of  worship  to  all  other  sects. 
There  are  in  Greece  Mohammedans,  Jews,  Roman  Catholics, 
and  a  few  Protestants.  The  Orthodox  Church  was  formerly 
ruled  by  the  Patriarch  of  Constantinople,  but  since  1833  it 
has  been  under  the  direction  of  a  Holy  Synod  consisting  of 
the  Metropolitan  of  Athens  and  four  archbishops  and  bishops. 

Turkey. 

Even  Turkey  has  gradually  to  yield  to  the  pressure  of 
modern  ideas  and  reforms.  Once  the  terror  of  Europe,  she 
lives  now  at  the  mercy  of  the  Christian  powers.  She  always 
allowed  to  the  conquered  Christian  nations  which  she  could 
not  govern  by  Moslem  law,  nor  kill  or  expel  without  ruining 
herself,  a  certain  measure  of  self-government,  and  contented 
herself  with  appointing  the  head,  and  exacting  tribute. 

Seven  non-Mohammedan  creeds  are  thus  recognized, 
namely:  i.  Latins,  l'" ranks  or  Roman  Catholics,  mostly  de- 
scendants of  the  Genoese  and  Venetian  settlers;  2.  Greeks; 
3.  Armenians;  4.  Syrians  and  United  Chaldeans;  5.  Maron- 
itcs,  subject  to  the  patriarch  at  Kanobin  on  Mount  Lebanon 

'  The  Constitution  granted  by  Don  Pedro  IV.  in  1S26,  with  an  addition  ia 
1852,  provides  (according  to  the  Spanish  work  on  "  Constitucioncs  Vigcntcs, " 
just  quoted,  Tom.  II.,  354  sq.)  :  "La  religion  catiUica  apostJlica  romatta  con- 
tinuard  sicndo  la  religion  del  Reino.  Todas  las  otras  religiones  serdn  fermiti- 
das  d  los  etrangeros,  asl  como  su  culto  domi'slico  J  particular  en  casas  destinadtu 
d  este  Jin,  sin  forma  alguna  exterior  de  templo." 


1 18  CJiiirch  and  State  in  the  United  States. 

and  the  Pope ;  6.  Protestants,  chiefly  converts  from  the 
Armenians;  7.  Jews.  Foreign  residents  enjoy  extra-terri- 
torial rights  under  the  protection  of  the  ambassadors  and 
consuls  of  their  countries.  American  and  other  foreign  mis- 
sionaries have  full  freedom  to  labor  among  Christians  and 
Jews.  The  more  division  among  the  Giaours  the  better  for 
the  Turks.  But  no  Christian  is  allowed  to  convert  a  Moslem, 
nor  is  any  Moslem  allowed  to  deny  his  faith.  The  laws  of 
the  Koran  punish  apostasy  with  death. 

After  the  Crimean  war,  in  which  France  and  England  com- 
bined saved  Turkey  from  the  grasp  of  the  Russian  bear, 
Sultan  Abdul-Medjid  abolished  the  death  penalty  for  apostasy 
by  the  "  Hatti-Humayoun,"  proclaimed  February  18,  1856. 
But  the  fanaticism  of  the  Moslem  is  stronger  than  the  will 
of  the  Sultan. 

The  Treaty  of  Berlin,  July  13,  1878,  has  inflicted  another 
blow  on  the  religious  autonomy  of  the  Sultan's  government. 
Among  its  provisions  are  the  following: 

"  Art.  LXII.  The  Sublime  Porte,  having  expressed  the  intention  to  main- 
tain the  principle  of  religious  liberty,  and  give  it  the  widest  scope,  the  contract- 
ing parties  take  notice  of  this  spontaneous  declaration. 

"  In  no  part  of  the  Ottoman  Empire  shall  difference  of  religion  be  alleged 
against  any  person  as  a  ground  for  exclusion  or  incapacity  as  regards  the  dis- 
charge of  civil  and  political  rights,  admission  to  the  public  employments,  func- 
tions, and  honors,  or  the  exercise  of  the  various  professions  and  industries. 

"  All  persons  shall  be  admitted,  without  distinction  of  religion,  to  give  evi- 
dence before  the  tribunals. 

"  The  freedom  and  outward  exercise  of  all  forms  of  worship  are  assured  to 
all,  and  no  hindrance  shall  be  offered  either  to  the  hierarchical  organizations 
of  the  various  communions  or  to  their  relations  with  their  spiritual  chiefs. 

"  Ecclesiastics,  pilgrims,  and  monks  of  all  nationalities  travelling  in  Turkey 
in  Europe,  or  in  Turkey  in  Asia,  shall  enjoy  the  same  rights,  advantages,  and 
privileges. 

"  The  right  of  official  protection  by  the  diplomatic  and  consular  agents  of 
the  powers  in  Turkey  is  recognized  both  as  regards  the  above-mentioned 
persons  and  their  religious,  charitable,  and  other  establishments  in  the  holy 
places  and  elsewhere." 


DOCUMENTS. 


DOCUMENT  I. 

Provisions  of  the   United  States  Constitution  Securing" 
Religious  Liberty,   1787. 

Article  VI.,  Section  3  : 

"  No  religious  test  shall  ever  be  required  as  a  qualification  to  any  office 
or  public  trust  under  the  United  States." 

Amendments.     Article  I.  : 

"  Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof  ;  or  abridging  the  freedom  of  speech,  or  of  the 
press  ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
government  for  a  redress  of  grievances." 

The   Virginia  Ordinance  of  lySy. 

While  the  Constitutional  Convention  was  in  session  at  Philadelphia,  the  Con- 
tinental Congress  sitting  under  the  Articles  of  Confederation  passed  an  ordi- 
nance, July  13,  17S7,  "  for  the  government  of  the  territory  of  the  United  States 
northwest  of  the  Ohio  river."  This  territory  was  ceded  by  Virginia  to  the 
United  States,  and  embraced  the  present  States  of  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin.  The  same  ordinance  was  afterwards  extended  to 
Tennessee,  Alabama,  and  Mississippi. 

This  ordinance  provides  for  full  religious  liberty  on  the  one  hand,  and  for  the 
cultivation  of  religion,  morality,  and  education,  as  essential  conditions  of 
national  prosperity.  Among  the  articles  which  shall  "  forever  remain  unaltera- 
ble," are  the  following  : 

Art.  I.  "  No  person  demeaning  himself  in  a  peaceable  and  orderly  manner, 
shall  ever  be  molested  on  account  of  his  mode  of  worship  or  religious  sentiments 
in  the  said  territory." 

Art.  III.  "  Religion,  morality,  and  knowledge  being  necessary  to  good  gov- 
ernment and  the  happiness  of  mankind,  schools  and  the  means  of  education 
shall  forever  be  encouraged." 

DOCUMENT  II. 

Opinion  of  the   U.  S.  Supreme  Court  on  the  Meaning  of 

Religious  Liberty,   1878. 

Reynolds  v.  United  States.  Reports,  vol.  98  (Boston  :  I.ittlc,  Hrown  &  Co., 
1878),  pp.   145  sqq. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  Reynolds,  a  Mor- 

119 


I20  Church  and  State  in  the  United  States. 

mon,  charged  with  bigamy,  decided  in  favor  of  the  constitutionality  and  validity 
of  the  Congressional  prohibition  of  polygamy  in  the  Territories.  Chief-Justice 
Waite,  in  delivering  the  decision,  gave  the  following  opinion  of  religion  and 
religious  liberty  (pp.  162  sqq.). 

"  Congress  cannot  pass  a  law  for  the  government  of  the  Territories  which 
shall  prohibit  the  free  exercise  of  religion.  The  first  amendment  to  the  Con- 
stitution expressly  forbids  such  legislation.  Religious  freedom  is  guaranteed 
everywhere  throughout  the  United  States,  so  far  as  congressional  interference 
is  concerned.  The  question  to  be  determined  is,  whether  the  law  now  under 
consideration  [prohibition  of  polygamy]  comes  within  this  prohibition. 

"  The  word  '  religion'  is  not  defined  in  the  Constitution.  We  must  go  else- 
where, therefore,  to  ascertain  its  meaning,  and  nowhere  more  appropriately,  we 
think,  than  to  the  history  of  the  times  in  the  midst  of  which  the  provision  was 
adopted.  The  precise  point  of  inquiry  is,  what  is  the  religious  freedom  which 
has  been  guaranteed. 

"  Before  the  adoption  of  the  Constitution,  attempts  were  made  in  some  of  the 
Colonies  and  States  to  legislate  not  only  in  respect  to  the  establishment  of  reli- 
gion, but  in  respect  to  its  doctrines  and  precepts  as  well.  The  people  were 
taxed,  against  their  will,  for  the  support  of  religion,  and  sometimes  for  the  sup- 
port of  particular  sects  to  whose  tenets  they  could  not  and  did  not  subscribe. 
Punishments  were  prescribed  for  a  failure  to  attend  upon  public  worship,  and 
sometimes  for  entertaining  heretical  opinions.  The  controversy  upon  this  gen- 
eral subject  was  animated  in  many  of  the  States,  but  seemed  at  last  to  culminate 
in  Virginia.  In  17S4,  the  House  of  Delegates  of  that  State,  having  under  con- 
sideration '  a  bill  establishing  provision  for  teachers  of  the  Christian  religion,' 
postponed  it  until  the  next  session,  and  directed  that  the  bill  should  be  pub- 
lished and  distributed,  and  that  the  people  be  requested  '  to  signify  their  opin- 
ion respecting  the  adoption  of  such  a  bill  at  the  next  session  of  assembly.' 

"  This  brought  out  a  determined  opposition.  Amongst  others,  Mr.  Madison 
prepared  a  '  Memorial  and  Remonstrance,'  which  was  widely  circulated  and 
signed,  in  which  he  demonstrated  '  that  religion,  or  the  duty  we  owe  the  Crea- 
tor,'was  not  within  the  cognizance  of  civil  government.  Semple's  'Virginia 
Baptists,'  Appendix.  At  the  next  session  the  proposed  bill  was  not  only  de- 
feated, but  another,  'for  establishing  religious  freedom,'  drafted  by  Mr.  Jef- 
ferson, was  passed,  i  Jeff.  Works,  45  ;  2  Howison,  Hist,  of  Va.,  298.  In 
the  preamble  of  this  act  (12  Hening's  Stat.,  84)  religious  freedom  is  defined  ; 
and  after  a  recital  '  that  to  suffer  the  civil  magistrate  to  intrude  his  powers  into 
the  field  of  opinion,  and  to  restrain  the  profession  or  propagation  of  principles 
on  supposition  of  their  ill  tendency,  is  a  dangerous  fallacy  which  at  once  de- 
stroys all  religious  liberty,'  it  is  declared  '  that  it  is  time  enough  for  the  rightful 
purposes  of  civil  government  for  its  officers  to  interfere  when  principles  break 
out  into  overt  acts  against  peace  and  good  order.'  In  these  two  sentences 
is  found  the  true  distinction  between  what  properly  belongs  to  the  church  and 
what  to  the  state. 

"  In  a  little  more  than  a  year  after  the  passage  of  this  statute  the  convention 
met  which  prepared  the  Constitution  of  the  United  States.  Of  this  convention 
Mr.  Jefferson  was  not  a  member,  he  being  then  absent  as  minister  to  France. 


Dociuneyits.  12 1 

As  soon  as  he  saw  the  draft  of  the  Constitution  proposed  for  adoption,  he,  in  a 
letter  to  a  friend,  expressed  his  disappointment  at  the  absence  of  an  express 
declaration  insuring  the  freedom  of  religion  (2  Jefl.  Works,  355),  but  was 
willing  to  accept  it  as  it  was,  trusting  that  the  good  sense  and  honest  intentions 
of  the  people  would  bring  about  the  necessary  alterations,  i  Jeff.  Works,  79. 
Five  of  the  States,  while  adopting  the  Constitution,  proposed  amendments. 
Three,  New  Hampshire,  New  York,  and  Virginia,  included  in  one  form  or  an- 
other a  declaration  of  religious  freedom  in  the  changes  they  desired  to  have 
made,  as  did  also  North  Carolina,  where  the  convention  at  first  declined  to 
ratify  the  Constitution  until  the  proposed  amendments  were  acted  upon.  Ac- 
cordingly, at  the  first  session  of  the  first  Congress  the  amendment  now  under 
consideration  was  proposed  with  others  by  Mr.  Madison.  It  met  the  views  of 
the  advocates  of  religious  freedom,  and  was  adopted.  Mr.  Jefferson  after- 
wards, in  reply  to  an  address  to  him  by  a  committee  of  the  Danbury  Baptist 
Association  (8  id.,  113),  took  occasion  to  say  :  '  Believing  with  you  that  reli- 
gion is  a  matter  which  lies  solely  between  man  and  his  God  ;  that  he  owes  ac- 
count to  none  other  for  his  faith  or  his  worship  ;  that  the  legislative  powers  of 
the  government  reach  actions  only,  and  not  opinions, — I  contemplate  with  sov- 
ereign reverence  that  act  of  the  whole  American  people  which  declared  that 
their  legislature  should  '  make  no  law  respecting  an  establishment  of  religion 
or  prohibiting  the  free  exercise  thereof,'  thus  building  a  wall  of  separation  be- 
tween church  and  state.  Adhering  to  this  expression  of  the  supreme  will  of  the 
nation  in  behalf  of  the  rights  of  conscience,  I  shall  see  with  sincere  satisfaction 
the  progress  of  those  sentiments  which  tend  to  restore  man  to  all  his  natural 
rights,  convinced  he  has  no  natural  right  in  opposition  to  his  social  duties.' 

"  Coming  as  this  does  from  an  acknowledged  leader  of  the  advocates  of  the 
measure,  it  may  be  accepted  almost  as  an  authoritative  declaration  of  the  scope 
and  effect  of  the  amendment  thus  secured.  Congress  was  deprived  of  all  legis- 
lative power  over  mere  opinion,  but  was  left  free  to  reach  actions  which  were 
in  violation  of  social  duties  or  subversive  of  good  order. 

"  Polygamy  has  always  been  odious  among  the  northern  and  western  nations 
of  Europe,  and,  until  the  establishment  of  the  Mormon  Church,  was  almost  ex- 
clusively a  feature  of  the  life  of  Asiatic  and  of  African  people.  At  common 
law,  the  second  marriage  was  always  void  (2  Kent,  Com.,  79),  and  from  the 
earliest  history  of  England  polygamy  has  been  treated  as  an  offence  against 
society.  After  the  establishment  of  the  ecclesiastical  courts,  and  until  the  lime 
of  James  I.,  it  was  punished  through  the  instrumentality  of  those  tribunals,  not 
merely  because  ecclesiastical  rights  had  been  violated,  but  because  upon  the 
separation  of  the  ecclesiastical  courts  from  the  civil  the  ecclesiastical  were  sup- 
posed to  be  the  most  appropriate  for  the  trial  of  matrimonial  causes  and  offences 
against  the  rights  of  marriage,  just  as  they  were  for  testamentary  causes  and 
the  settlement  of  the  estates  of  deceased  persons. 

"  By  the  statute  of  I.  James  I.  (c.  11),  the  offence,  if  committed  in  England 
or  Wales,  was  made  punishable  in  the  civil  courts,  and  the  penalty  was  death. 
As  this  statute  was  limited  in  its  operation  to  England  and  Wales,  it  was  at  a 
very  early  period  re-enacted,  generally  with  some  modifications,  in  all  the 
colonies.     In  connection  with  the  case  we  are  nflauCDQsidering,  it  is  a  signifi- 


122  Church  and  State  in  the  U?iited  States. 

cant  fact  that  on  the  8th  of  December,  1788,  after  the  passage  of  the  act  estab- 
lishing religious  freedom,  and  after  the  convention  of  Virginia  had  recom- 
mended as  an  amendment  to  the  Constitution  of  the  United  States  the  declara- 
tion in  a  bill  of  rights  that  '  all  men  have  an  equal,  natural,  and  unalienable 
right  to  the  free  exercise  of  religion,  according  to  the  dictates  of  conscience,' 
the  legislature  of  that  State  substantially  enacted  the  statute  of  James  I.,  death 
penalty  included,  because,  as  recited  in  the  preamble,  '  it  hath  been  doubted 
whether  bigamy  or  polygamy  be  punishable  by  the  laws  of  this  Commonwealth.' 
12  Hening's  Stat.,  6gi.  From  that  day  to  this  we  think  it  may  safely  be  said 
there  never  has  been  a  time  in  any  State  of  the  Union  when  polygamy  has  not 
been  an  offence  against  society,  cognizable  by  the  civil  courts,  and  punishable 
with  more  or  less  severity.  In  the  face  of  all  this  evidence,  it  is  impossible  to  be- 
lieve that  the  constitutional  guaranty  of  religious  freedom  was  intended  to  pro- 
hibit legislation  in  respect  to  this  most  important  feature  of  social  life.  Mar- 
riage, while  from  its  veiy  nature  a  sacred  obligation,  is  nevertheless,  in  most 
civilized  nations,  a  civil  contract,  and  usually  regulated  by  law.  Upon  it  society 
may  be  said  to  be  built,  and  out  of  its  fruits  spring  social  relations  and  social 
obligations  and  duties,  with  which  government  is  necessarily  required  to  deal. 
In  fact,  according  as  monogamous  or  polygamous  marriages  are  allowed,  do 
we  find  the  principles  on  which  the  government  of  the  people,  to  a  greater  or 
less  extent,  rests.  Professor  Lieber  says,  polygamy  leads  to  the  patriarchal 
principle,  and  when  applied  to  large  communities,  fetters  the  people  in  station- 
ary despotism,  while  that  principle  cannot  long  exist  in  connection  with 
monogamy.  Chancellor  Kent  observes  that  this  remark  is  equally  striking 
and  profound.  2  Kent,  Com.,  81,  note{e).  An  exceptional  colony  of  polyg- 
amists  under  an  exceptional  leadership  may  sometimes  exist  for  a  time  with- 
out appearing  to  disturb  the  social  condition  of  the  people  who  surround 
it  ;  but  there  cannot  be  a  doubt  that,  unless  restricted  by  some  form  of  consti- 
tution, it  is  within  the  legitimate  scope  of  the  power  of  every  civil  government 
to  determine  whether  polygamy  or  monogamy  shall  be  the  law  of  social  life 
under  its  dominion. 

"  In  our  opinion  the  statute  immediately  under  consideration  is  within  the 
legislative  power  of  Congress.  It  is  constitutional  and  valid  as  prescribing  a 
rule  of  action  for  all  those  residing  in  the  Territories,  and  in  places  over  which 
'the  United  States  have  exclusive  control.  This  being  so,  the  only  question 
which  remains  is  whether  those  who  make  polygamy  a  part  of  their  religion  are 
excepted  from  the  operation  of  the  statute.  If  they  are,  then  those  who  do  not 
make  polygamy  a  part  of  their  religious  belief  may  be  found  guilty  and  punished, 
while  those  who  do  must  be  acquitted  and  go  free.  This  would  be  introducing 
a  new  element  into  criminal  law.  Laws  are  made  for  the  government  of  ac- 
tions, and  while  they  cannot  interfere  with  mere  religious  belief  and  opinions, 
they  may  with  practices.  Suppose  one  believed  that  human  sacrifices  were 
a  necessary  part  of  religious  worship,  would  it  be  seriously  contended  that  the 
civil  government  under  which  he  lived  could  not  interfere  to  prevent  a  sacri- 
fice ?  Or,  if  a  wife  religiously  believed  it  was  her  duty  to  burn  herself  upon 
the  funeral  pile  of  her  dead  husband,  would  it  be  beyond  the  power  of  the 
civil  government  to  prevent  her  carrying  her  belief  into  practice  ? 


Doctnnents. 


123 


"  So  here,  as  a  law  of  the  organization  of  society  under  the  exclusive  domin- 
ion of  the  United  States,  it  is  provided  that  plural  marriages  shall  not  be  al- 
lowed. Can  a  man  excuse  his  practices  to  the  contraiy  because  of  his  religious 
belief?  To  permit  this  would  be  to  make  the  professed  doctrines  of  religious 
belief  superior  to  the  law  of  the  land,  and  in  effect  to  permit  every  citizen  to 
become  a  law  unto  himself.  Government  would  exist  only  in  name  under  such 
circumstances." 

DOCUMENT    III. 

Dr.  Franklin  s  Speech  in  Support  of  his  Motion  for  Prayers  in 
the  Federal  Convention. 

From  Madison's  Report  in  "The  Madison  Papers,"  vol.  ii.  984-986;  re- 
printed in  Elliot's  "  Debates,"  enlarged  edition,  vol.  v.  pp.  253-255. 

"  Dr.  Fr.\nklin  :  Mr.  President,  the  small  progress  we  have  made  after  four 
or  five  weeks'  close  attendance  and  continual  reasoning  with  each  other — our 
different  sentiments  on  almost  every  question,  several  of  the  last  producing  as 
many  noes  as  ayes — is,  methinks,  a  melancholy  proof  of  the  imperfection  of 
the  human  understanding.  We  indeed  seem  to  feel  our  own  want  of  political 
wisdom,  since  we  have  been  running  about  in  search  of  it.  We  have  gone  back 
to  ancient  history  for  models  of  government,  and  examined  the  different  forms 
of  those  republics  which,  having  been  formed  with  the  seeds  of  their  own  dis- 
solution, no  longer  exist.  And  we  have  viewed  modern  States  all  round  Eu- 
rope, but  find  none  of  their  constitutions  suitable  to  our  circumstances. 

"  In  this  situation  of  this  assembly,  as  it  were,  in  the  dark,  to  find  political 
truth,  and  scarce  able  to  distinguish  it  when  presented  to  us,  how  has  it  hap- 
pened, sir,  that  we  have  not  hitherto  once  thought  of  humbly  applying  to  the 
Father  of  lights  to  illuminate  our  understandings  ?  In  the  beginning  of  the 
contest  with  Great  Britain,  when  we  were  sensible  of  danger,  we  had  daily 
prayer  in  this  room  for  the  divine  protection.  Our  prayers,  sir,  were  heard, 
and  they  were  graciously  answered.  All  of  us  who  were  engaged  in  the  strug- 
gle must  have  observed  frequent  instances  of  a  superintending  Pro%-idence  in 
our  favor.  To  that  kind  Providence  we  owe  this  happy  opportunity  of  con- 
sulting in  peace  on  the  means  of  establishing  our  future  national  felicity.  And 
have  we  now  forgotten  that  powerful  Friend  ?  Or  do  we  imagine  that  we  no 
longer  need  his  assistance  ? 

"  I  have  lived,  sir,  a  long  time,  and,  the  longer  I  Hve,  the  more  convincing 
proofs  I  see  of  this  truth — that  God  governs  in  the  affairs  of  men.  And  if  a 
sparrow  cannot  fall  to  the  ground  without  his  notice,  is  it  possible  that  an  em- 
pire can  rise  without  his  aid  ?  We  have  been  assured,  sir,  in  the  sacred  writ- 
ings that  'except  the  Lord  build  the  house,  they  labor  in  vain  that  build  it.' 
I  firmly  believe  this  ;  and  I  also  believe  that  without  his  concurring  aid  we 
shall  succeed,  in  this  political  building,  no  better  than  the  builders  of  B.ibel. 
We  shall  be  divided  by  our  little  partial  local  interests  ;  our  projects  will  be 
confounded  ;  and  we  ourselves  shall  become  a  reproach  and  by-word  down  to 
future  ages.  And  what  is  worse,  mankind  may  hereafter,  from  this  unfortu- 
nate instance,  despair  of  establishing  governments  by  human  wisdom,  and 
leave  it  to  chance,  war,  and  conquest. 


124  Church  and  State  in  the  United  States. 

"  I  therefore  beg  to  move  that  henceforth  prayers,  imploring  the  assistance  o'f 
heaven  and  its  blessings  on  our  deliberations,  be  held  in  this  assembly  every 
morning  before  we  proceed  to  business,  and  that  one  or  more  of  the  clergy  of 
this  city  be  requested  to  officiate  in  that  service." 
"  Mr.  Sherman  seconded  the  motion. 

"  Mr.  Hamilton,  and  several  others,  expressed  their  apprehensions  that, 
however  proper  such  a  resolution  might  have  been  at  the  beginning  of  the 
Convention,  it  might  at  this  late  day,  in  the  first  place,  bring  on  it  some  disa- 
greeable animadversions  ;  and,  in  the  second,  lead  the  public  to  believe  that 
the  embarrassments  and  dissensions  within  the  Convention  had  suggested  this 
measure. 

"  It  was  answered  by  Dr.  Franklin,  Mr.  Sherman,  and  others,  that  the  past 
omission  of  a  duty  could  not  justify  a  further  omission  ;  that  the  rejection  of 
such  a  proposition  would  expose  the  Convention  to  more  unpleasant  animad 
versions  than  the  adoption  of  it ;  and  that  the  alarm  out  of  doors  that  might  be 
excited  for  the  state  of  things  within,  would  at  least  be  as  likely  to  do  good  as 
ill. 

"  Mr.  Williamson  observed  that  the  true  cause  of  the  omission  could  not 
be  mistaken.     The  Convention  had  no  funds. 

"  Mr.  Randolph  proposed,  in  order  to  give  a  favorable  aspect  to  the  meas- 
ure, that  a  sermon  be  preached  at  the  request  of  the  Convention  on  the  Fourth 
of  July,  the  anniversary  of  Independence  ;  and  thenceforward  prayers,  etc.,  to 
be  read  in  the  Convention  every  morning. 

"Dr.  Franklin  seconded  this  motion.  After  several  unsuccessful  attempts 
for  silently  postponing  this  matter  by  adjourning,  the  adjournment  was  at 
length  carried,  without  any  vote  on  the  motion." 

The  speech  of  Dr.  Franklin  was  written  and  read  to  the  Convention  by  his 
colleague,  Mr.  Wilson,  "it  being  inconvenient  to  the  Doctor  to  remain  long  on 
his  feet."  See  Madison,  in  the  introduction  to  his  report  of  the  Debates, 
Elliot,  vol.  v.,  122. 

The  motion  was  not  voted  on  and  virtually  withdrawn.  In  the  "  Works  of 
Benjamin  Franklin,"  edited  by  Jared  Sparks,  Boston,  1S47,  vol.  v.,  p.  153,  the 
speech  of  Dr.  Franklin  is  given,  with  the  following  note  of  his  on  p.  155  :  "  The 
Convention,  except  three  or  four  persons,  thought  prayers  unnecessary  !  "  The 
remarks  of  Hamilton  and  others,  however,  show  that  they  were  not  opposed 
to  prayers,  but  to  the  untimeliness  of  the  motion. 

At  the  enthusiastic  centennial  celebration  of  the  Constitution  in  Philadel- 
phia, September  17,  1887,  prayer  was  not  neglected.  Bishop  Potter,  of  New 
York,  made  the  opening,  Cardinal  Gibbons,  of  Baltimore,  the  closing  prayer, 
and  both  prelates  performed  the  solemn  duty  with  excellent  taste,  falling 
back  upon  the  common  ground  of  Protestant  and  Catholic  Christianity.  The 
Rev.  Dr.  Witherspoon,  a  Presbyterian  clergyman,  pronounced  the  benediction. 
President  Cleveland  embodied  Franklin's  speech  in  his  eulogy  of  the  Constitu- 
tion. 

James  Madison,  in  a  letter  to  Mr.  Sparks,  dated  Montpellier,  April  8,  1831 
(Elliot's  "  Debates,"  vol.  i.,  p.  508,  revised  ed.),  makes  the  following  allusion  to 
Franklin's  motion  :   "It  was  during  that  period  of  gloom  [the  hot  controversy 


Docinncnts.  1 25 

between  the  larger  and  smaller  States  on  the  rule  of  voting  in  the  Senate]  that 
Dr.  Franklin  made  the  proposition  for  a  religious  service  in  the  Convention,  an 
account  of  which  was  so  erroneously  given,  with  every  semblance  of  authenticity, 
through  the  National  Intelligencer,  several  years  ago." 

DOCUMENT  IV. 

Acts  of  Co7igrcss  in  regard  to  t/ie  Bible. 

I.  Act  of  the  Continental  Congress,  Sept.  ir,  1777. 

From  "  Journal  of  Congress,  Containing  the  Proceedings  from  January  1st, 
I777>  to  January  ist,  1778.  Published  by  order  of  Congress,"  vol.  iii., Phila- 
delphia (John  Dunlap),  pp.  383-3S6. 

"  The  committee  to  whom  the  memorial  of  Doctor  Allison  '  and  others  was 
referred,  report,  'That  they  have  conferred  fully  with  the  printers,  etc.,  in 
this  city,  and  are  of  the  opinion,  that  the  proper  types  for  printing  the  Bible 
are  not  to  be  had  in  this  country',  and  that  the  paper  cannot  be  procured,  but 
with  such  difficulties  and  subject  to  such  casualties  as  render  any  dependence 
on  it  altogether  improper  ;  that  to  import  types  for  the  purpose  of  setting  up 
an  entire  edition  of  the  Bible,  and  to  strike  ofl  30,000  copies,  with  paper,  bind- 
ing, etc.,  will  cost  10,272/.  10 J-,  od.,  which  must  be  advanced  by  Congress  to 
be  reimbursed  by  the  sale  of  the  books  ;  that  in  the  opinion  of  the  committee, 
considerable  difficulties  will  attend  the  procuring  the  types  and  paper  ;  that  after- 
wards the  risque  of  importing  them  will  considerably  enhance  tiie  cost,  and  that 
the  calculations  are  subject  to  such  uncertainty  in  the  present  state  of  affairs, 
that  Congress  cannot  much  rely  on  them  ;  that  the  use  of  the  Eible  is  so 
universal,  and  its  importance  so  great,  that  your  committee  refer  the  above  to 
the  consideration  of  Congress,  and  if  Congress  shall  not  think  it  expedient  to 
order  the  importation  of  types  and  paper,  the  committee  recommend  that 
Congress  will  order  the  committee  of  commerce  to  import  20,000  Bibles  from 
Holland,  Scotland  or  elsewhere  into  the  different  ports  of  the  States  of  the 
Union.' 

"  \\Tiereupon  it  was  moved,  That  the  committee  of  commerce  be  directed  to 
import  20,000  copies  of  the  Bible. 

New  Hampshire. — Mr.  Folsom,  ay  ;  Mr.  Frost,  ay — ay. 
Massachusetts  Bay. — Mr.   S.  Adams,  ay  ;  Mr.  J.  Adams,  ay  ;  Mr.  Cerr)*,  ay; 

Mr.  Lovell,  ay — ay. 
Rhode  Island. — Mr.  Marchant,  ay — ay. 

Connecticut. — Mr.  Dyer,  ay  ;  Mr.  Law,  ay  ;   Mr.  Williams,  ay — ay. 
New  York. — Mr.  Duane,  no — * 

New  Jersey. — Mr  Witherspoon,  ay  ;  Mr.  Clarke,  ay — ay. 
Pennsylvania. — Mr.  Wilson,  ay  ;    Mr.  Roberdcau,  ay — ay. 
Delaware. — Mr.  Reed,  no — no. 
Maryland. — Mr.  Chase,  no — * 
Virginia. — Mr.  Harrison,  no  ;  Mr.  F.  L.  Lee,  ay  ;  Mr.  Jones,  no — no. 

•  Dr.  Patrick  Allison  was  one  of  the  two  ch.nplains  of  the  Continental  Congress,  the  Rer. 
William  White  (afterwards  Bishop  of  the  diocese  of  Pennsylvania)  bcin>;  the  other.  The  me- 
morial referred  to  was  a  petition  to  Congress  to  issue  an  edition  of  the  Uibic,  under  the  direc- 
tion and  at  the  expense  of  the  government. — P.  S. 


126  Church  ajid  State  in  the  United  States. 

North  Carolina. — Mr.  Harnett,  no — no. 

South  Carolina. — Mr.  Middleton,  no  ;  Mr.  Heyward,  no  ;  Mr.  Laurens,  ay — no. 

Georgia. — Mr.  Brownson,  ay — ay. 

"So  it  was  resolved  in  the  affirmative." 

2.  Act  of  the  Continental  Congress,  passed  September  12,  1782. 
From  "Journal  of  Congress  and  of  the  United  States  in  Congress  Assem- 
bled," vol.  vii.,  Philad.  (D.  C.  Claypoole),  pp.  468,  469. 

"  The  committee,  consisting  of  Mr.  Duane,  Mr.  M'Keen  and  Mr.  Wither- 
spoon,  to  whom  was  referred  a  memorial  of  Robert  Aitkin,'  printer,  dated 
January  21st,  1781,  respecting  an  edition  of  the  Holy  Scriptures,  report  : 

"  '  That  Mr.  Aitkin  '  has,  at  a  great  expense,  now  finished  an  American 
edition  of  the  Holy  Scriptures  in  English  ;  that  the  committee  have,  from  time 
to  time,  attended  to  his  progress  in  the  work  ;  that  they  also  recommend  it  to 
the  two  Chaplains  of  Congress  to  examine  and  give  their  opinion  of  the  execu- 
tion, who  have  accordingly  reported  thereof. 

"  '  The  recommendation  and  the  report  being  as  follows  : 

"  '  Philadelphia,  September  ist,  1782. 
"  '  Reverend  Gentlemen  : — Our  knowledge  of  your  piety  and  public  spirit 
leads  us  without  apology  to  recommend  to  your  particular  attention  the  edition 
of  the  Holy  Scriptures  publishing  by  Mr.  Aitkin.  He  undertook  this  expen- 
sive work  at  a  time,  when  from  the  circumstances  of  the  war,  an  English 
edition  of  the  Bible  could  not  be  imported,  nor  any  opinion  formed  how  long 
the  obstruction  might  continue.  On  this  account  particularly  he  deserves 
applause  and  encouragement.  We  therefore  wish  you.  Reverend  gentlemen, 
to  examine  the  execution  of  the  work,  and  if  approved,  to  give  it  the  sanction 
of  your  judgment  and  the  weight  of  your  recommendation. 

"  '  We  are,  with  very  great  respect,  your  most  obedient  servants, 

"  '(Signed)  JAMES  DUANE,  Chairman, 

"  '  In  behalf  of  a  committee  of  Congress  on  Mr.  Aitkin's  memorial. 

"  '  Reverend  Dr.  White  and  Reverend  Mr.  Duffield, 
Chaplains  of  the  United  States  assembled.' 

"  '  Report. 

"  '  Gentlemen  : 

"  'Agreeably  to  your  desire,  we  have  paid  attention  to  Mr.  Robert  Aitkin's 
impression  of  the  Holy  Scriptures  of  the  Old  and  New  Testament.  Having 
selected  and  examined  a  variety  of  new  passages  throughout  the  work,  we 
are  of  opinion  that  it  is  executed  with  great  accuracy  as  to  the  sense,  and  with 
as  few  grammatical  and  typographical  errors  as  could  be  expected  in  an  under- 
taking of  such  magnitude.  Being  ourselves  witnesses  of  the  demand  for  this 
invaluable  book,  we  rejoice  in  the  present  prospect  of  a  supply,  hoping  that  it 
will  prove  as  advantageous  as  it  is  honorable  to  the  gentleman,  who  has  ex- 

•  A  misprint  for  Aitken. — P.  S. 


Docuvients. 


127 


erted  himself  to  furnish  it  at  the  evident  risque  of   private  fortune.     We  are, 
gentlemen,  your  very  respectful  and  humble  servants, 

'"(Signed)  WILLIAM  WHITE, 

'"GEORGE  DUFFIELD. 
"  '  Honorable  James    Duane,  Esquire,  Chairman, 
and  the  other  honorable  gentlemen  of  the 
committee  of    Congress    on    Mr.    Aitkin's 
memorial. 
"  '  Philadelphia,  September  loth,  1782.' 

"  Whereupon, 

"  Resolved,  That  the  United  States,  in  Congress  assembled,  highly  approve 
the  pious  and  laudable  undertaking  of  Mr.  Aitkin,  as  subservient  to  the  inter- 
est of  religion,  as  well  as  an  instance  of  the  progress  of  arts  in  this  country, 
and  being  satisfied  from  the  above  report  of  his  care  and  accuracy  in  the  exe- 
cution of  the  work,  they  recommend  this  edition  of  the  Bible  to  the  inhabitants 
of  the  United  States,  and  hereby  authorize  him  to  publish  this  recommendation 
in  the  manner  he  shall  think  proper." 

3.  Joint  Resolution  in  behalf  of  the  American  Company  [Committee]  '  of 
Revisers  of  the  New  Testament  for  Return  and  Remission  of  Duties. 

"  Whereas,  2,100  copies  of  the  book  known  as  the  Revision  of  the  New 
Testament  of  our  Lord  and  Saviour  Jesus  Christ,  printed  by  the  University 
Presses  of  Oxford  and  Cambridge  in  England,  being  the  joint  and  gratuitous 
work  of  two  companies  of  translators,  one  in  England  and  the  other  in  the 
United  States,  were  sent,  under  the  direction  of  the  English  Company  of  Re- 
visers, to  and  for  the  use  and  distribution  of  the  American  Company  of  Revis- 
ers, and  were  heretofore  imported  at  the  Port  of  New  York,  for  or  in  behalf  of 
the  American  Company  of  Revisers,  and  the  duties  paid  thereon  ;  and 

"  Whereas,  The  revision  of  the  translation  of  the  Old  Testament  Scriptures 
is  now  progressing  under  similar  auspices,  and  the  same  is  to  be  printed  in  a 
similar  manner,  and  copies  of  them  will  be  required  for  the  use  and  distribu- 
tion of  the  American  Company  of  Revisers,  therefore, 

'^  Beit  Resolved,  By  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America,  in  Congress  assembled.  That  the  Secretary  of  the  Treasury 
be  and  is  hereby  authorized  and  directed  to  ascertain  the  facts  of  such  past  and 
expected  importations  of  the  revisions  of  the  Bible,  and  if  he  shall  be  satisfied 
that  they  are  substantially  as  above  stated,  then  to  refund  and  repay,  out  of 
any  moneys  in  the  Treasury  not  otherwise  appropriated,  to  the  American 
Company  of  Revisers,  of  which  Reverend  Doctor  Philip  Schafl,  of  New  York, 
is  Chairman,''  and  Reverend  Doctor  Henry  Day,  of  New  York,-^  is  Secretar)', 
through  and  by  said  ofiicers,  the  amount  of  duties  heretofore  paid  upon  the 
said  books  so  imported  ;  and  that  he  be,  and  further  is,  authorized  and  directed 

*  There  were  two  committees  on  revision,  one  for  F.ngl.ind  anU  one  for  America  ;  each  com- 
mittee was  composed  of  two  companies,  one  for  the  Old  and  one  for  the  New  Testament. — 
P.  S. 

'  President  of  the  committee  ;  the  title  Chairman  being  given  to  the  presiding  oflicen  of 
the  two  separate  companies  (IJr.  Woolscy  and  Dr.  Green). — P.  S. 

*  A  mistake  for  Rev.  Dr.  George  E.  Day,  of  New  Haven.— P.  S. 


128  Church  and  State  in  the  Utiited  States, 

to  remit  the  duties  upon,  and  to  admit  to  entry  free  of  duty  or  custom,  the 
books  containing  the  revision  of  the  Old  Testament  which  may  be  hereafter 
imported  from  England  by  or  on  behalf  of  the  American  Company  of  Revis- 
ers, for  their  use  and  distribution  as  above  set  forth, 

"Provided,  that  future  importations  of  the  Bible  for  the  purposes  set  forth 
in  this  Act  shall  not  exceed  two  thousand  copies. 

"  Approved,  March  ii,  1882." 

DOCUMENT   V. 

Judge  Story  s  Explanation  of  the  Constitutional  Guarantee  of 
Religious  Liberty. 

Judge  Joseph  Story,  the  authoritative  expounder  of  the  American  Consti- 
tution, explains  the  third  section  of  Article  VI.,  and  the  First  Amendment  of 
the  Constitution  ("  Commentaries  on  the  Constitution  of  the  United  States," 
Boston,  1S33,  pp.  690  sq.,  and  69S-703)  as  follows  : 

"  This  clause  [the  last  in  Art.  VI.,  §  3]  is  not  introduced  merely  for  the 
purpose  of  satisfying  the  scruples  of  many  respectable  persons  who  feel  an  in- 
vincible repugnance  to  any  religious  test  or  affirmation.  It  had  a  higher 
object :  to  cut  off  forever  every  pretense  of  any  alliance  between  church  and 
state  in  the  national  government.  The  framers  of  the  constitution  were  fully 
sensible  of  the  dangers  from  this  source,  marked  out  in  the  historj'  of  other 
ages  and  countries,  and  not  wholly  unknown  to  our  own.  They  knew  that 
bigotry  was  unceasingly  vigilant  in  its  stratagems  to  secure  to  itself  an  exclusive 
ascendency  over  the  human  mind,  and  that  intolerance  was  ever  ready  to  arm 
itself  with  all  the  terrors  of  the  civil  power  to  exterminate  those  who  doubted 
its  dogmas  or  resisted  its  infallibility.  The  Catholic  and  Protestant  had  alter- 
nately waged  the  most  ferocious  and  unrelenting  warfare  on  each  other,  and 
Protestantism,  at  the  very  moment  when  it  was  proclaiming  the  right  of  private 
judgment,  prescribed  boundaries  to  that  right,  beyond  which  if  any  one  dared 
to  pass  he  must  seal  his  rashness  with  the  blood  of  martyrdom.  The  history 
of  the  parent  country,  too,  could  not  fail  to  instruct  them  in  the  uses  and  the 
abuses  of  religious  tests.  They  there  found  the  pains  and  penalties  of  non- 
conformity written  in  no  equivocal  language,  and  enforced  with  a  stern  and 
vindictive  jealousy.     .     .     . 

"  The  right  of  society  or  government  to  interfere  in  matters  of  religion  will 
hardly  be  contested  by  any  persons  who  believe  that  piety,  religion,  and 
morality  are  intimately  connected  with  the  well-being  of  the  state,  and  in- 
dispensable to  the  administration  of  civil  justice.  The  promulgation  of  the 
great  doctrines  of  religion  ;  the  being,  and  attributes,  and  providence  of  one 
almighty  God  ;  the  responsibility  to  him  for  all  our  actions,  founded  upon 
moral  freedom  and  accountability  ;  a  future  state  of  rewards  and  punishments  ; 
the  cultivation  of  all  the  personal,  social,  and  benevolent  virtues  ; — these  never 
can  be  a  matter  of  indifference  in  any  well-ordered  community.  It  is,  indeed, 
difficult  to  conceive  how  any  civilized  society  can  well  exist  without  them, 
And,  at  all  events,  it  is  impossible  for  those  who  believe  in  the  truth  of  Christi- 
anity, as  a  divine  revelation,  to  doubt  that  it  is  the  especial  duty  of  government 
to  foster  and  encourage  it  among  all  the  citizens  and  subjects.     This  is  a  point 


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129 


wholly  distinct  from  that  of  the  right  of  private  judgment  in  matters  of  religion, 
and  of  the  freedom  of  public  worship  according  to  the  dictates  of  one's  own 
conscience. 

"  The  real  difficulty  lies  in  ascertaining  the  limits  to  which  government 
may  rightfully  go  in  fostering  and  encouraging  religion.  Three  cases  may 
easily  be  supposed.  One,  where  a  government  affords  aid  to  a  particular  re- 
ligion, leaving  all  persons  free  to  adopt  any  other  ;  another,  where  it  creates 
an  ecclesiastical  establishment  for  the  propagation  of  the  doctrines  of  a  particu- 
lar sect  of  that  religion,  leaving  a  like  freedom  to  all  others  ;  and,  a  tliird, 
where  it  creates  such  an  establishment,  and  excludes  all  persons  not  belonging 
to  it,  either  wholly  or  in  part,  from  any  participation  in  the  public  honors, 
trusts,  emoluments,  privileges,  and  immunities  of  the  state.  For  instance,  a 
government  may  simply  declare  that  the  Christian  religion  shall  be  the  religion 
of  the  state,  and  shall  be  aided  and  encouraged  in  all  the  varieties  of  sects  be- 
longing to  it  ;  or  it  may  declare  that  the  Catholic  or  the  Protestant  religion 
shall  be  the  religion  of  the  state,  leaving  every  man  to  the  free  enjoyment  of  his 
own  religious  opinions  ;  or  it  may  establish  the  doctrines  of  a  particular  sect,  as 
of  Episcopalians,  as  the  religion  of  the  state,  with  a  like  freedom  ;  or  it  may 
establish  the  doctrines  of  a  particular  sect  as  exclusively  the  religion  of  the 
state,  tolerating  others  to  a  limited  extent,  or  excluding  all  not  belonging  to  it 
from  all  public  honors,  trusts,  emoluments,  privileges,  and  immunities. 

"  Probably  at  the  time  of  the  adoption  of  the  constitution,  and  of  the  amend- 
ment to  it  no%v  under  consideration,  the  general,  if  not  the  universal,  sentiment 
in  America  was  that  Christianity  ought  to  receive  encouragement  from  the 
state,  so  far  as  it  is  not  incompatible  with  the  private  rights  of  conscience  and 
the  freedom  of  religious  worship.  An  attempt  to  level  all  religions,  and  to 
make  it  a  matter  of  state  policy  to  hold  all  in  utter  indifference,  would  have 
created  universal  disapprobation,  if  not  universal  indignation. 

"  It  yet  remains  a  problem  to  be  solved  in  human  affairs  whether  any  free 
government  can  be  permanent  where  the  public  worship  of  God  and  the  sup- 
port of  religion  constitute  no  part  of  the  policy  or  duty  of  the  state  in  any  as- 
signable shape.  The  future  experience  of  Christendom,  and  chiefly  of  the 
American  States,  must  settle  this  problem,  as  yet  new  in  the  history  of  the 
world,  abundant  as  it  has  been  in  experiments  in  the  theory  of  government. 

"  But  the  duty  of  supporting  religion,  and  especially  the  Christian  religion, 
is  very  different  from  the  right  to  force  the  consciences  of  other  men,  or  to  pun- 
ish them  for  worshipping  God  in  the  manner  which  they  believe  their  accounta- 
bility to  him  requires.  It  has  been  truly  said  that  '  religion,  or  the  duty  we  owe 
to  our  Creator,  and  the  manner  of  discharging  it,  can  be  dictated  only  by 
reason  and  conviction,  not  by  force  or  violence.'  Mr.  Locke  himself,  who  did 
not  doubt  the  right  of  government  to  interfere  in  matters  of  religion,  and  es- 
pecially to  encourage  Christianity,  has  at  the  same  time  expressed  his  opinion 
of  the  right  of  private  judgment  and  liberty  of  conscience  in  a  manner  becom- 
ing his  character  as  a  sincere  friend  of  civil  and  religious  liberty.  '  No  man  or 
society  of  men,'  says  he,  '  have  any  authority  to  impose  their  opinions  or  inter- 
pretations on  any  other,  the  meanest  Christian  ;  since,  in  matters  of  religion, 
every  man  must  know,  and  lielieve,  and  give  an  account  for  himself.'  The 
rights  of  conscience  are,  indeed,  beyond  the  just  reach  of  any  human  power. 


130  Church  and  State  hi  the  United  States. 

They  are  given  by  God,  and  cannot  be  encroached  upon  by  human  authority 
without  a  criminal  disobedience  of  the  precepts  of  natural,  as  well  as  revealed, 
religion. 

"  The  real  object  of  the  amendment  was  not  to  countenance,  much  less  to 
advance,  Mahomctanism,  or  Judaism,  or  infidelity,  by  prostrating  Christianity  ; 
but  to  exclude  all  rivalry  among  Christian  sects,  and  to  prevent  any  national 
ecclesiastical  establishment  which  should  give  to  an  hierarchy  the  exclusive 
patronage  of  the  national  government.  It  thus  sought  to  cut  ofJ  the  means  of 
religious  persecution  (the  vice  and  pest  of  former  ages),  and  the  power  of  sub- 
verting the  rights  of  conscience  in  matters  of  religion,  which  had  been  tram- 
pled upon  almost  from  the  days  of  the  Apostles  to-  the  present  age.  The 
history  of  the  parent  country  had  afforded  the  most  solemn  warnings  and 
melancholy  instructions  on  this  head  ;  and  even  New  England,  the  land  of  the 
persecuted  Puritans,  as  well  as  other  colonies,  where  the  Church  of  England 
had  maintained  its  superiority,  had  furnished  a  chapter  as  full  of  dark  bigotry 
and  intolerance  as  any  which  could  be  found  to  disgrace  the  pages  of  foreign 
annals.  Apostasy,  heresy,  and  nonconformity  have  been  standard  crimes  for 
public  appeals  to  kindle  the  flames  of  persecution  and  apologize  for  the  most 
atrocious  triumphs  over  innocence  and  virtue. 

' '  It  was  under  a  solemn  consciousness  of  the  dangers  from  ecclesiastical  ambi- 
tion, the  bigotr}'  of  spiritual  pride,  and  the  intolerance  of  sects,  thus  exemplified 
in  our  domestic  as  well  as  in  our  foreign  annals,  that  it  was  deemed  advisable 
to  exclude  from  the  national  government  all  power  to  act  upon  the  subject. 
The  situation,  too,  of  the  different  states  equally  proclaimed  the  policy  as  well 
as  the  necessity  of  such  an  exclusion.  In  some  of  the  States,  Episcopalians 
constituted  the  predominant  sect  ;  in  others,  Presbyterians  ;  in  others,  Congre- 
gationalists  ;  in  others,  Quakers  ;  and  in  others  again  there  was  a  close  nu- 
merical rivalry  among  contending  sects.  It  was  impossible  that  there  should 
not  arise  perpetual  strife  and  perpetual  jealousy  on  the  subject  of  ecclesiastical 
ascendancy  if  the  national  government  were  left  free  to  create  a  religious  es- 
tablishment. The  only  security  was  in  extirpating  the  power.  But  this  alone 
would  have  been  an  imperfect  security,  if  it  had  not  been  followed  up  by  a 
declaration  of  the  right  of  the  free  exercise  of  religion,  and  a  prohibition  (as 
we  have  seen)  of  all  religious  tests.  Thus,  the  whole  power  over  the  subject 
of  religion  is  left  exclusively  to  the  State  governments,  to  be  acted  upon  accord- 
ing to  their  own  sense  of  justice  and  the  State  constitutions  ;  and  the  Catholic 
and  the  Protestant,  the  Calvinist  and  the  Arminian,  the  Jew  and  the  Infidel, 
may  sit  down  at  the  common  table  of  the  national  councils  without  any  inquisi- 
tion into  their  faith  or  mode  of  worship." 

DOCUMENT    VI. 

Opinion  of  Dr.  Francis  Lieber  on  Religious  Liberty. 

From  "Civil  Liberty  and  Self-Government,"  by  Francis  Lieber,  LL.D. 
Philadelphia,  1859,  p.  99. 

"  Liberty  of  conscience,  or,  as  it  ought  to  be  called  more  properly,'  the  liberty 

*  Conscience  lies  beyond  the  reach  of  government.  "  Thoughts  are  free,"  is  an  old  German 
saying.  The  same  must  be  said  of  feelings  and  conscience.  That  which  government,  even 
the  most  despotic,  can  alone  interfere  with,  is  the  profession  of  religion,  worship,  and  church 
government. 


Documents. 


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of  worship,  is  one  of  the  primordial  rights  of  man,  and  no  system  of  liberty  can 
be  considered  comprehensive  which  does  not  include  guarantees  for  the  free  ex- 
ercise of  this  right.  It  belongs  to  American  liberty  to  separate  entirely  the  in- 
stitution which  has  for  its  object  the  support  and  diffusion  of  religion  from  the 
political  government.  We  have  seen  already  what  our  constitution  says  on  this 
point.  All  state  constitutions  have  similar  provisions.  They  prohibit  govern- 
ment from  founding  or  endowing  churches,  and  from  demanding  a  religious 
qualification  for  any  office  or  the  exercise  of  any  right.  They  are  not  hostile  to 
religion,  for  we  see  that  all  the  State  governments  direct  or  allow  the  Bible  to 
be  read  in  the  public  schools  ;  but  they  adhere  strictly  to  these  two  points  :  No 
worship  shall  be  interfered  with,  either  directly  by  persecution,  or  indirectly  by 
disqualifying  members  of  certain  sects,  or  by  favoring  one  sect  above  the 
others  ;  and  no  church  shall  be  declared  the  church  of  the  state,  or  '  established 
church '  ;  nor  shall  the  people  be  taxed  by  government  to  support  the  clergy 
of  all  the  churches,  as  is  the  case  in  France." 


DOCUMENT  VII. 

Judge  Cooley  on  Religious  Liberty  in  the  United  States. 

Judge  Thomas  M.  Cooley,  in  his  "Constitutional  Limitations"  (Little, 
Brown  &  Co.,  Boston,  5th  ed.  1883),  pp.  576  sqq.,  has  the  following  chapter  : 

"  OF    RELIGIOUS    LIBERTY. 

"A  careful  examination  of  the  American  constitutions  will  disclose  the  fact 
that  nothing  is  more  fully  set  forth  or  more  plainly  expressed  than  the  deter- 
mination of  their  authors  to  presers-e  and  perpetuate  religious  liberty  and  to 
guard  against  the  slightest  approach  towards  the  establishment  of  an  inequality 
in  the  civil  and  political  rights  of  citizens,  which  shall  have  for  its  basis  only 
their  differences  of  religious  belief.  The  American  people  came  to  the  work 
of  framing  their  fundamental  laws,  after  centuries  of  religious  oppression  and 
persecution,  sometimes  by  one  party  or  sect  and  sometimes  by  another,  had 
taught  them  the  utter  futility  of  all  attempts  to  propagate  religious  opinions  by 
the  rewards,  penalties,  or  terrors  of  human  laws.  They  could  not  fail  to  per- 
ceive, also,  that  a  union  of  church  and  state,  like  that  which  existed  in  Eng- 
land, if  not  wholly  impracticable  in  America,  was  certainly  opposed  to  the 
spirit  of  our  institutions,  and  that  any  domineering  of  one  sect  over  another 
■was  repressing  to  the  energies  of  the  people,  and  must  necessarily  tend  to 
discontent  and  disorder.  Whatever,  therefore,  may  have  been  their  individual 
sentiments  upon  religious  questions,  or  upon  the  propriety  of  the  state  assum- 
ing supervision  and  control  of  religious  affairs  under  other  circum:.tances,  the 
general  voice  has  been,  that  persons  of  everj'  religious  j)ersuasion  should  be 
made  equal  before  the  law,  and  that  questions  of  religious  belief  and  religious 
worship  should  be  questions  between  each  individual  man  and  his  Maker.  Of 
these  questions  human  tribunals,  so  long  as  the  public  order  is  not  disturbed, 
are  not  to  take  cognizance,  except  as  the  individual,  by  his  voluntary  action 
in  associating  himself  with  a  religious  organization,  may  have  conferred  upon 


132  Church  and  State  in  the  United  States. 

such  organization  a  jurisdiction  over  him  in  ecclesiastical  matters.  These 
constitutions,  therefore,  have  not  established  religious  toleration  merely,  but 
religious  equality,  in  that  particular  being  far  in  advance  not  only  of  the 
mother  country,  but  also  of  much  of  the  colonial  legislation,  which,  though 
more  liberal  than  that  of  other  civilized  countries,  nevertheless,  exhibited  feat- 
ures of  discrimination  based  upon  religious  beliefs  or  professions. 

"  Considerable  differences  will  appear  in  the  provisions  in  the  State  consti- 
tutions on  the  general  subject  of  the  present  chapter,  some  of  them  being 
confined  to  declarations  and  prohibitions  whose  purpose  is  to  secure  the  most 
perfect  equality  before  the  law  of  all  shades  of  religious  belief,  while  some 
exhibit  a  jealousy  of  ecclesiastical  authority  by  making  persons  who  exercise 
the  functions  of  clergyman,  priest,  or  teacher  of  any  religious  persuasion, 
society,  or  sect,  ineligible  to  civil  office  ;  and  still  others  show  some  traces  of 
the  old  notion  that  truth  and  a  sense  of  duty  do  not  consort  with  skepticism  in 
religion.  There  are  exceptional  clauses,  however,  though  not  many  in  num- 
ber ;  and  it  is  believed  that  where  they  exist  they  are  not  often  made  use  of  to 
deprive  any  person  of  the  civil  or  political  rights  or  privileges  which  are  placed 
by  law  within  the  reach  of  his  fellows. 

"  Those  things  which  are  not  lawful  under  any  of  the  American  constitu- 
tions may  be  stated  thus  : 

"  I.  Any  law  respecting  an  establishment  of  religion.  The  legislatures  have 
not  been  left  at  liberty  to  effect  a  union  of  church  and  state,  or  to  establish 
preferences  by  law  in  favor  of  any  one  religious  persuasion  or  mode  of  wor- 
ship. There  is  not  complete  religious  liberty  where  any  one  sect  is  favored  by 
the  state  and  given  an  advantage  by  law  over  other  sects.  Whatever  estab- 
lishes a  distinction  against  one  class  or  sect,  is,  to  the  extent  to  which  the  dis- 
tinction operates  unfavorably,  a  persecution  ;  and  if  based  on  religious  grounds, 
a  religious  persecution.  The  extent  of  the  discrimination  is  not  material  to 
the  principle.  It  is  enough  that  it  creates  an  inequality  of  right  or  privilege. 
"  II.  Compulsory  support,  by  taxation  or  otherwise,  of  religious  instruc- 
tion. Not  only  is  no  one  denomination  to  be  favored  at  the  expense  of  the 
rest,  but  all  support  of  religious  instruction  must  be  entirely  voluntary.  It  is 
not  within  the  sphere  of  government  to  coerce  it. 

' '  III.  Compulsory  attendance  upon  religious  worship.  Whoever  is  not  led 
by  choice  or  a  sense  of  duty  to  attend  upon  the  ordinances  of  religion  is  not 
to  be  compelled  to  do  so  by  the  state.  It  is  the  province  of  the  state  to  en- 
force, so  far  as  it  may  be  found  practicable,  the  obligations  and  duties  which 
the  citizen  may  be  under  or  may  owe  to  his  fellow-citizen  or  to  society  ;  but 
those  which  spring  from  the  relations  between  himself  and  his  Maker  are  to  be 
enforced  by  the  admonitions  of  the  conscience,  and  not  by  the  penalties  of 
human  laws.  Indeed,  as  all  real  worship  must  essentially  and  necessarily 
consist  in  the  free-will  offering  of  adoration  and  gratitude  by  the  creature  to 
the  Creator,  human  laws  are  obviously  inadequate  to  incite  or  compel  those 
internal  and  voluntary  emotions  which  shall  induce  it  ;  and  human  penalties 
at  most  could  only  enforce  the  observance  of  idle  ceremonies  which,  when 
unwillingly  performed,  are  alike  valueless  to  the  participants,  and  devoid  of 
.gill  the  elements  of  true  worship. 


Documents.  1 33 

"  IV.  Restraints  upon  the  free  exercise  of  religion  according  to  the  dictates 
of  the  conscience.  No  external  authority  is  to  place  itself  between  the  finite 
being  and  the  Infinite,  when  the  former  is  seeking  to  render  the  homage  that 
is  due,  and  in  a  mode  which  commends  itself  to  his  conscience  and  judgment 
as  being  suitable  for  him  to  render  and  acceptable  to  its  object. 
"V.  Restraints  upon  the  expression  of  religious  belief.  An  earnest  believer 
usually  regards  it  as  his  duty  to  propagate  his  opinions  and  to  bring  others  to 
his  views.  To  deprive  liim  of  this  right  is  to  take  from  him  the  power  to  per- 
form what  he  considers  a  most  sacred  obligation. 

"  These  are  the  prohibitions  which  in  some  form  of  words  are  to  be  found 
in  the  American  constitutions,  and  which  secure  freedom  of  conscience  and  of 
religious  worship.  No  man,  in  religious  matters,  is  to  be  subjected  to  the 
censorship  of  the  state  or  of  any  public  authority  ;  and  the  state  is  not  to 
inquire  into  or  take  notice  of  religious  belief  when  the  citizen  performs  his 
duty  to  the  state  and  to  his  fellows,  and  is  guilty  of  no  breach  of  public  morals 
or  public  decorum. 

"  But  while  thus  careful  to  establish,  protect,  and  defend  religious  freedom 
and  equality,  the  American  constitutions  contain  no  provisions  which  prohibit 
the  authoiities  from  such  solemn  recognition  of  a  superintending  Providence 
in  public  transactions  and  exercises  as  the  general  religious  sentiment  of  man- 
kind inspires,  and  as  seems  meet  and  proper  in  finite  and  dependent  beings. 
Whatever  may  be  the  shades  of  religious  belief,  all  must  acknowledge  the  fit- 
ness of  recognizing  in  important  human  affairs  the  superintending  care  and 
control  of  the  great  Governor  of  the  Universe,  and  of  acknowledging  with 
thanksgiving  His  boundless  favors,  or  bowing  in  contrition  when  visited  with 
the  penalties  of  Ilis  broken  laws.  No  principle  of  constitutional  law  is  vio- 
lated when  thanksgiving  or  fast  days  are  appointed  ;  when  chaplains  are  desig-^ 
nated  for  the  army  and  navy  ;  when  legislative  sessions  are  opened  with 
prayer  or  the  reading  of  the  Scriptures,  or  when  religious  teaching  is  encour- 
aged by  a  general  exemption  of  the  houses  of  religious  worship  from  taxation 
for  the  support  of  the  state  government.  Undoubtedly  the  spirit  of  the  consti- 
tution will  require,  in  all  these  cases,  that  care  be  taken  to  avoid  discrimina- 
tion in  favor  of  or  against  any  one  religious  denomination  or  sect  ;  but  the 
power  to  do  any  of  these  things  does  not  become  unconstitutional  simply  be- 
cause of  its  susceptibility  to  abuse.  This  public  recognition  of  religious  wor- 
ship, however,  is  not  based  entirely,  perhaps  not  even  mainly,  upon  a  sense  of 
what  is  due  to  the  Supreme  Being  himself  as  the  author  of  all  good  and  of  all 
law  ;  but  the  same  reasons  of  state  policy  which  induce  the  government  to 
aid  institutions  of  chanty  and  seminaries  of  instruction  will  incline  it  also 
to  foster  religious  worship  and  religious  institutions  as  conscr>'ators  of  the 
public  morals,  and  valuable,  if  not  indispensable,  assistants  in  the  preservation 
of  the  public  order. 

"  Nor,  while  recognizing  a  superintending  Providence,  are  wc  always  pre- 
cluded from  recognizing,  also,  in  tlie  rules  prescribed  for  the  conduct  of  the 
citizen,  the  notorious  fact  that  the  prevailing  religion  in  the  States  is  Christian. 
Some  acts  would  be  offensive  to  public  sentiment  in  a  Christian  community, 
and  would  tend  to  public  disorder,  which  in  a  Mohammedan  or  Pagan  country 


1 34  Church  and  State  in  the  United  States. 

might  be  passed  by  without  notice,  or  even  be  regarded  as  meritorious  ;  just  as 
some  things  would  be  considered  indecent  and  worthy  of  reprobation  and  pun- 
ishment as  such  in  one  state  of  society,  which  in  another  would  be  in  accord 
with  the  prevailing  customs,  and  therefore  defended  and  protected  by  the  laws. 
The  criminal  laws  of  every  country  are  shaped  in  greater  or  less  degree  by  the 
prevailing  public  sentiment  as  to  what  is  right,  proper,  and  decorous,  or  the 
reverse  ;  and  they  punish  those  acts  as  crimes  which  disturb  the  peace  and 
order,  or  tend  to  shock  the  moral  sense  or  sense  of  propriety  and  decency  of 
the  community.  The  moral  sense  is  largely  regulated  and  controlled  by  the 
religious  belief  ;  and  therefore  it  is  that  those  things  which,  estimated  by  a 
Christian  standard,  are  profane  and  blasphemous,  are  properly  punished  as 
crimes  against  society,  since  they  are  offensive  in  the  highest  degree  to  the 
general  public  sense,  and  have  a  direct  tendency  to  undermine  the  moral  sup- 
port of  the  laws  and  to  corrupt  the  community. 

"It  is  frequently  said  that  Christianity  is  a  part  of  the  law  of  the  land.  In  a 
certain  sense  and  for  certain  purposes  this  is  true.  The  best  features  of  the 
common  law,  and  especially  those  which  regard  the  family  and  social  rela- 
tions ;  which  compel  the  parent  to  support  the  child,  the  husband  to  support 
the  wife  ;  which  make  the  marriage-tie  permanent  and  forbid  polygamy, — if  not 
derived  from,  have  at  least  been  improved  and  strengthened  by  the  prevailing 
religion  and  the  teachings  of  its  sacred  Book.  But  the  law  does  not  attempt 
to  enforce  the  precepts  of  Christianity  on  the  ground  of  their  sacred  character 
or  divine  origin.  Some  of  those  precepts,  though  we  may  admit  their  contin- 
ual and  universal  obligation,  we  must  nevertheless  recognize  as  being  incapable 
of  enforcement  by  human  laws.  That  standard  of  morality  which  requires  one 
to  love  his  neighbor  as  himself,  we  must  admit  is  too  elevated  to  be  accepted  by 
human  tribunals  as  the  proper  test  by  which  to  judge  the  conduct  of  the  citi- 
zen ;  and  one  could  hardly  be  held  responsible  to  the  criminal  laws  if  in  good- 
ness of  heart  and  spontaneous  charity  he  fell  something  short  of  the  Good 
Samaritan.  The  precepts  of  Christianity,  moreover,  affect  the  heart,  and  ad- 
dress themselves  to  the  conscience,  while  the  laws  of  the  state  can  regard  the 
outward  conduct  only  ;  and  for  these  several  reasons  Christianity  is  not  a  part 
of  the  law  of  the  land  in  any  sense  which  entitles  the  courts  to  take  notice  of 
and  base  their  judgments  upon  it,  except  so  far  as  they  can  find  that  its  pre- 
cepts and  principles  have  been  incorporated  in  and  made  a  component  part  of 
the  positive  law  of  the  state. 

"  Mr.  Justice  Story  has  said  in  the  Girard  Will  case  that,  although  Chris- 
tianity  is  a  part  of  the  common  law  of  the  state,  it  is  only  so  in  this  qualified 
sense,  that  its  divine  origin  and  truth  are  admitted,  and  therefore  it  is  not  to  be 
maliciously  and  openly  reviled  and  blasphemed  against,  to  the  annoyance  of 
believers  or  to  the  injury  of  the  public.  It  may  be  doubted,  however,  if  the 
punishment  of  blasphemy  is  based  necessarily  upon  an  admission  of  the  divine 
origin  or  truth  of  the  Christian  religion,  or  incapable  of  being  otherwise 
justified. 

"  Blasphemy  has  been  defined  as  consisting  in  speaking  evil  of  the  Deity, 
with  an  impious  purpose  to  derogate  from  the  divine  majesty,  and  to  alienate 
the  minds  of  others  from  the  love  and  reverence  of  God.     It  is  purposely  using 


Documents.  135 

words  concerning  the  Supreme  Being  calculated  and  designed  to  impair  and 
destroy  the  reverence,  respect,  and  confidence  due  to  Him,  as  the  intelligent 
Creator,  Governor,  and  Judge  of  the  world.  It  embraces  the  idea  of  detrac- 
tion as  regards  the  character  and  attributes  of  God,  as  calumny  usually  carries 
the  same  idea  when  applied  to  an  individual.  It  is  a  wilful  and  malicious 
attempt  to  lessen  men's  reverence  of  God,  by  denying  his  existence  or  his  attri- 
butes as  an  intelligent  Creator,  Governor,  and  Judge  of  men,  and  to  prevent 
their  having  confidence  in  Him  as  such.  Contumelious  reproaches  and  profane 
ridicule  of  Christ  or  of  the  Holy  Scriptures  have  the  same  evil  effect  in  sapping 
the  foundations  of  society  and  of  public  order,  and  are  classed  under  the  same 
head. 

"  In  an  early  case  where  a  prosecution  for  blasphemy  came  before  Lord 
Hale,  he  is  reported  to  have  said  :  '  Such  kind  of  wicked,  blasphemous  words 
are  not  only  an  offence  to  God  and  religion,  but  a  crime  against  the  laws,  state, 
and  government,  and  therefore  punishable  in  the  Court  of  King's  Bench.  For 
to  say  religion  is  a  cheat,  is  to  subvert  all  those  obligations  whereby  civil  soci- 
ety is  preserved  ;  that  Christianity  is  a  part  of  the  laws  of  England,  and  to  re- 
proach the  Christian  religion  is  to  speak  in  subversion  of  the  law.'  Eminent 
judges  in  this  country  have  adopted  this  language,  and  applied  it  to  prosecu- 
tions for  blasphemy,  where  the  charge  consisted  in  malicious  ridicule  of  the 
author  and  founder  of  the  Christian  religion.  The  early  cases  in  New  York 
and  Massachusetts  are  particularly  marked  by  clearness  and  precision  on  this 
point,  and  Mr.  Justice  Clayton,  of  Delaware,  has  also  adopted  and  followed 
the  ruling  of  Lord  Chief-Justice  Hale,  with  such  explanations  of  the  true  basis 
and  justification  of  these  prosecutions  as  to  give  us  a  clear  understanding  of 
the  maxim  that  Christianity  is  a  part  of  the  law  of  the  land,  as  understood  and 
applied  by  the  courts  in  these  cases.  Taken  with  the  explanation  given,  there 
is  nothing  in  the  maxim  of  which  the  believer  in  any  creed,  or  the  disbeliever 
of  all,  can  justly  complain.  The  language  which  the  Christian  regards  as 
blasphemous,  no  man  in  sound  mind  can  feel  under  a  sense  of  duty  to  make 
use  of  under  any  circumstances,  and  no  person  is  therefore  deprived  of  a  right 
when  he  is  prohibited,  under  penalties,  from  uttering  it. 

"  But  it  does  not  follow  because  blasphemy  is  punishable  as  a  crime,  that 
therefore  one  is  not  at  liberty  to  dispute  and  argue  against  the  truth  of  the 
Christian  religion,  or  of  any  accepted  dogma.  Its  '  divine  origin  and  truth ' 
are  not  so  far  admitted  in  the  law  as  to  preclude  their  being  controverted.  To 
forbid  discussion  on  this  subject,  except  by  the  various  sects  of  believers,  would 
be  to  abridge  the  liberty  of  speech  and  of  the  jiress  in  a  point  which,  with 
many,  would  be  regarded  as  most  important  of  all.  Blasphemy  implies  some- 
thing more  than  a  denial  of  any  of  the  truths  of  religion,  even  of  the  highest 
and  most  vital.  A  bad  motive  must  exist  ;  there  must  be  a  wilful  and  mali- 
cious attempt  to  lessen  men's  reverence  for  the  Deity,  or  for  the  accepted  re- 
ligion. But  outside  of  such  wilful  and  malicious  attempt,  there  is  a  broad  field 
for  candid  investigation  and  discussion,  which  is  as  much  open  to  the  Jew  and 
the  Mohammedan  as  to  the  professors  of  the  Christian  faith.  '  No  author  or 
printer  who  fairly  and  conscientiously  promulgates  the  opinions  with  whose 
truths  he  is  impressed,  for  the  benefit  of  others,  is  answerable  as  a  crimin.-il. 


136  CJiiirch  and  State  in  the  United  States. 

A  malicious  and  mischievous  intention  is,  in  such  a  case,  the  broad  boundary  be- 
tween right  and  wrong  ;  it  is  to  be  collected  from  the  offensive  levity,  scur- 
rilous and  opprobrious  language,  and  other  circumstances,  whether  the  act  of 
the  party  was  malicious.'  Legal  blasphemy  implies  that  the  words  were 
■uttered  in  a  wanton  manner,  '  with  a  wicked  and  malicious  disposition,  and 
not  in  a  serious  discussion  upon  any  controverted  point  in  religion.'  The 
courts  have  always  been  careful,  in  administering  the  law,  to  say  that  they  did 
not  intend  to  include  in  blasphemy  disputes  between  learned  men  upon  partic- 
ular controverted  points.  The  constitutional  provisions  for  the  protection  of 
religious  liberty  not  only  include  within  their  protecting  power  all  sentiments 
and  professions  concerning  or  upon  the  subject  of  religion,  but  they  guarantee 
to  eveiy  one  a  perfect  right  to  form  and  promulgate  such  opinions  and  doc- 
trines upon  religious  matters,  and  in  relation  to  the  existence,  power,  attributes, 
and  providence  of  a  Supreme  Being  as  to  himself  shall  seem  reasonable  and 
correct.  In  doing  this  he  acts  under  an  awful  responsibility,  but  it  is  not  to 
any  human  tribunal. 

"  Other  forms  of  profanity  besides  that  of  blasphemy  are  also  made  punish- 
able by  statutes  in  the  several  States.  The  cases  these  statutes  take  notice  of 
are  of  a  character  no  one  can  justify,  and  their  punishment  involves  no  question 
of  religious  liberty.  The  right  to  use  profane  and  indecent  language  is  recog- 
nized by  no  religious  creed,  and  the  practice  is  reprobated  by  right-thinking 
men  of  every  nation  and  every  religious  belief.  The  statutes  for  the  punish- 
ment of  public  profanity  require  no  further  justification  than  the  natural  im- 
pulses of  every  man  who  believes  in  a  Supreme  Being,  and  recognizes  his  right 
to  the  reverence  of  his  creatures. 

"  The  laws  against  the  desecration  of  the  Christian  Sabbath  by  labor  or 
sports  are  not  so  readily  defensible  by  arguments,  the  force  of  which  will  be 
felt  and  admitted  by  all.  It  is  no  hardship  to  any  one  to  compel  him  to  abstain 
from  public  blasphemy  or  other  profanity,  and  none  can  complain  that  his 
rights  of  conscience  are  invaded  by  this  forced  respect  to  a  prevailing  religious 
sentiment.  But  the  Jew  who  is  forced  to  respect  the  first  day  of  the  week, 
when  his  conscience  requires  of  him  the  observance  of  the  seventh  also,  may 
plausibly  urge  that  the  law  discriminates  against  his  religion,  and  by  forcing 
him  to  keep  a  second  Sabbath  in  each  week,  unjustly,  though  by  indirection, 
punishes  him  for  his  belief. 

"  The  laws  which  prohibit  ordinary  employments  on  Sunday  are  to  be  de- 
fended, either  on  the  same  grounds  which  justify  the  punishment  of  profanity, 
or  as  establishing  sanitary  regulations,  based  upon  the  demonstration  of  ex- 
perience that  one  day's  rest  in  seven  is  needful  to  recuperate  the  exhausted  en- 
ergies of  body  and  mind.  If  sustained  on  the  first  ground,  the  view  must  be 
that  such  laws  only  require  the  proper  deference  and  regard  which  those  not 
accepting  the  common  belief  may  justly  be  required  to  pay  to  the  public  con- 
science. The  Supreme  Court  of  Pennsylvania  have  prefeired  to  defend  such 
legislation  on  the  second  ground  rather  than  the  first  ;  but  it  appears  to  us 
that  if  the  benefit  to  the  individual  is  alone  to  be  considered,  the  argument 
against  the  law  which  he  may  make  who  has  already  observed  the  seventh  day 
of  the  week,  is  unanswerable.     But  on  the  other  ground  it  is  clear  that  these 


Documents.  137 

laws  are  supportable  on  authority,  notwithstanding  the  inconvenience  which 
they  occasion  to  those  whose  religious  sentiments  do  not  recognize  the  sacred 
character  of  the  first  day  of  the  week. 

"  Whatever  deference  the  constitution  or  the  laws  may  require  to  be  paid  in 
some  cases  to  the  conscientious  scruples  or  religious  convictions  of  the  majority, 
the  general  policy  always  is,  to  avoid  with  care  any  compulsion  which  infringes 
on  the  religious  scruples  of  any,  however  little  reason  may  seem  to  others  to 
underlie  them.  Even  in  the  important  matter  of  bearing  arms  for  the  public 
defence,  those  who  cannot  in  conscience  take  part  are  excused,  and  their  pro- 
portion of  this  great  and  sometimes  imperative  burden  is  borne  by  the  rest  of 
the  community. 

"Some  of  the  State  constitutions  have  also  done  away  with  the  distinction 
which  existed  at  the  common  law  regarding  the  admissibility  of  testimony  in 
some  cases.  All  religions  were  recognized  by  the  law  to  the  extent  of  allow- 
ing all  persons  to  be  sworn,  and  to  give  evidence  who  believed  in  a  superin- 
tending Providence,  who  rewards  and  punishes,  and  that  an  oath  was  binding 
on  their  conscience.  But  the  want  of  such  belief  rendered  the  person  incom- 
petent. Wherever  the  common  law  remains  unchanged,  it  must,  we  suppose, 
be  held  no  violation  of  religious  liberty  to  recognize  and  enforce  its  distinc- 
tions ;  but  the  tendency  is  to  do  away  with  them  entirely,  or  to  allow  one's  un- 
belief to  go  to  his  credibility  only,  if  taken  into  account  at  all." 

DOCUMENT  VIII. 

George  Bancroft  on  the  Constitutional  Guarantee  of  Religious 

Liberty. 

From  his  "  History  of  the  Formation  of  the  Constitution  of  the  United 
States  of  America,"  New  York,  1SS2,  vol.  ii.,  p.  326. 

"Vindicating  the  right  of  individuality  even  in  religion,  and  in  religion 
above  all,  the  new  nation  dared  to  set  the  example  of  accepting  in  its  relations 
to  God  the  principle  first  divinely  ordained  in  Judea.  It  left  the  manage- 
ment of  temporal  things  to  the  temporal  power ;  but  the  American  Constitu- 
tion, in  harmony  with  the  people  of  the  several  States,  withheld  from  the  fed- 
eral government  the  power  to  invade  the  home  of  reason,  the  citadel  of  con- 
science, the  sanctuary  of  the  soul  ;  and  not  from  indilTerence,  but  that  the 
infinite  spirit  of  eternal  truth  might  move  in  its  freedom  and  purity  and  power." 

To  this  we  add,  by  permission,  a  private  letter  in  answer 
to  a  question  of  the  author  : 

"Newport,  R.  I.,  August  30,  1887. 

"  My  Dear  Dr.  Sciiaff  : — I  have  yours  of  the  I2lh.  By  the  Constitution 
no  power  is  held  by  Congress  except  such  as  shall  have  been  granted  to  it. 
Congress  therefore  from  the  beginning  was  as  much  without  the  power  to 
make  a  law  respecting  the  estalilishmcnt  of  religion  as  it  is  now  after  the 
amendment  has  been  passed.  The  power  had  not  been  granted,  and  there- 
fore did  not  exist,  for  Congress  has  no  powers  except  such  as  are  granted  ; 
but  a  feeling  had  got  abroad  that  there  should  have  been  a  Bill  of  Rights,  and 


138  Church  and  State  in  the  United  States. 

therefore  to  satisfy  the  craving,  a  series  of  articles  were  framed  in  the  nature 
of  a  Bill  of  Rights,  not  because  such  a  declaration  was  needed,  but  because  the 
people  wished  to  see  certain  principles  distinctly  put  forward  as  a  part  of  the 
Constitution.  The  first  amendment,  so  far  as  it  relates  to  an  establishment 
of  religion,  was  proposed  without  passion,  accepted  in  the  several  States  with- 
out passion,  and  so  found  its  place  as  the  opening  words  of  the  amendments 
in  the  quietest  manner  possible.  This,  I  think,  is  a  full  answer  to  your 
question. 

"  I  take  this  occasion  to  express  to  you  my  great  regard  and  hopes  for  your 
health  and  prosperity. 

"  Yours  most  truly,  GEO.  BANCROFT. 

"Rev.   Dr.   Philip  Schaff, 

"  Lake  Mohonk  Mountain  House, 

"  MonoPi.^  Lake,  Ulster  Co.,  N.  Y." 

DOCUMENT    IX. 

Christianity  a  Part  of  the  Covunon  Law  of  Pennsylvania — 
Decision  of  the  Supreme  Court  of  PenJisylvatiia  in  the 
Case  of  Updegraph  v.  the  Conunonzvealth,  February, i2>22. 

From  the  "  Pennsylvania  Supreme  Court  Reports,"  Serg.  &^  R.,  vol.  xi.,  p. 
398,  Philadelphia,  1845. 

"  The  opinion  of  the  court  was  delivered  by  Duncan,  J.  This  was  an  in- 
dictment for  blasphemy,  founded  on  an  act  of  assembly,  passed  in  1700,  which 
enacts  that  whosoever  shall  wilfully,  premeditatedly,  and  despitefully  blaspheme 
and  speak  loosely  and  profanely  of  Almighty  God,  Christ  Jesus,  the  Holy 
Spirit,  or  the  Scriptures  of  Truth,  and  is  legally  convicted  thereof,  shall  for- 
feit and  pay  the  sum  of  ten  pounds. 

"  It  charges  the  defendant  with  contriving  and  intending  to  scandalize  and 
bring  into  disrepute,  and  vilify  the  Christian  religion  and  the  Scriptures  of 
Truth,  and  that  he,  in  the  presence  and  hearing  of  several  persons,  unlawfully, 
wickedly,  and  premeditatedly,  despitefully,  and  blasphemously,  did  say, 
among  other  things,  in  substance  as  follows  :  '  That  the  Holy  Scriptures  were 
a  mere  fable  ;  that  they  were  a  contradiction,  and  that,  although  they  con- 
tained a  number  of  good  things,  yet  they  contained  a  great  many  lies,'  and  the 
indictment  concludes,  to  the  great  dishonor  of  Almighty  God,  to  the  great 
scandal  of  the  profession  of  the  Christian  religion,  to  the  evil  example  of  all 
others  in  like  case  offending,  and  against  the  form  of  the  act  of  assembly  in 
such  case  made  and  provided. 

"  The  jury  have  found  that  the  defendant  did  speak  words  of  that  substance 
in  the  temper  and  with  the  intent  stated.  This  verdict  excludes  every  thing  like 
innocence  of  intention  ;  it  finds  a  malicious  intention  in  the  speaker  to  vilify 
the  Christian  religion  and  the  Scriptures,  and  this  court  cannot  look  beyond 
the  record,  nor  take  any  notice  of  the  allegation,  that  the  words  were  uttered 
by  the  defendant,  a  member  of  a  debating  association,  which  convened  weekly 
for  discussion  and  mutual  information,  and  that  the  expressions  were  used  in 
the  course  of  argument  on  a  religious  question.    That  there  is  an  association  in 


Documents. 


139 


•which  so  serious  a  subject  is  treated  with  so  much  levity,  indecency,  and  scur- 
rility, existing  in  this  city,  I  am  sorry  to  hear,  for  it  would  prove  a  nursery  of 
vice,  a  school  of  preparation  to  qualify  young  men  for  the  gallows,  and  young 
women  for  the  brothel,  and  there  is  not  a  skeptic  of  decent  manners  and  good 
morals  who  would  not  consider  such  debating  clubs  as  a  common  nuisance 
and  disgrace  to  the  city.  From  the  tenor  of  the  words,  it  is  impossible  that 
they  could  be  spoken  seriously  and  conscientiously  in  the  discussion  of  a  re- 
ligious or  theological  topic  ;  there  is  nothing  of  argument  in  the  language  ;  it 
was  the  outpouring  of  an  invective  so  vulgarly  shocking  and  insulting  that  the 
lowest  grade  of  civil  authority  ought  not  to  be  subject  to  it,  but  when  spoken 
in  a  Christian  land,  and  to  a  Christian  audience,  the  highest  offence  contra 
bonos  mores,  and  even  if  Christianity  was  not  part  of  the  law  of  the  land,  it  is 
the  popular  religion  of  the  country,  an  insult  on  which  would  be  indictable  as 
directly  tending  to  disturb  the  public  peace.  The  bold  ground  is  taken,  though 
it  has  often  been  explored,  and  notliingbut  what  is  trite  can  be  said  upon  it, — 
it  is  a  barren  soil,  upon  which  no  flower  ever  blossomed  ;  the  assertion  is  once 
more  made  that  Christianity  never  was  received  as  part  of  the  common  law  of 
this  Christian  land,  and  it  is  added,  that  if  it  was,  it  was  virtually  repealed  by 
the  Constitution  of  the  United  States,  as  inconsistent  with  the  liberty  of  the 
people,  the  freedom  of  religious  worship,  and  hostile  to  the  genius  and  spirit 
of  our  government,  and,  with  it,  the  act  against  blasphemy  ;  and  if  the  argu- 
ment is  worth  any  thing,  all  the  laws  which  have  Christianity  for  their  object — 
all  would  be  carried  away  at  one  fell  swoop — the  act  against  cursing  and 
swearing,  and  breach  of  the  Lord's  day  ;  the  act  forbidding  incestuous  mar- 
riages, perjury  by  taking  a  false  oath  upon  the  book,  fornication  and  adultery, 
et peccatum  illud  horribile  non  nominandum  inter  Christianas  ;  for  all  these  are 
founded  on  Christianity — for  all  these  are  restraints  upon  civil  liberty,  accord- 
ing to  the  argument, — edicts  of  religious  and  civic  tyranny,  '  when  enlighted 
notions  of  the  rights  of  man  were  not  so  universally  diflused  as  at  the  present 
day.' 

"  Another  exception  is  taken.  However  technical  it  may  be,  and  however 
heinous  the  offence,  still,  if  it  is  not  charged  as  the  law  requires,  the  plaintid 
in  error  is  entitled  to  the  full  benefit  of  the  exception.  The  objection  is,  that 
the  words  are  not  said  to  have  been  spoken  profanely. 

"  We  will  first  dispose  of  what  is  considered  the  grand  objection — the  consti- 
tutionality of  Christianity — for  in  effect  that  is  the  question. 

"Christianity,  general  Christianity,  is,  and  always  has  been,  a  part  of  the 
common  law  of  Pennsylvania  ;  Christianity,  without  the  spiritual  artillery  of 
European  countries,  for  this  Christianity  was  one  of  the  considerations  of  the 
royal  charter,  and  the  very  basis  of  its  great  founder,  William  Penn ;  not 
Christianity  founded  on  any  particular  religious  tenets  ;  not  Christianity  with 
an  established  church,  and  tithes,  and  spiritual  courts ;  but  Christianity  with 
liberty  of  conscience  to  all  men.  William  Penn  and  Lord  Baltimore  were  the 
first  legislators  who  passed  laws  in  favor  of  liberty  of  conscience  ;  for  before 
that  period  the  principle  of  liberty  of  conscience  appeared  in  the  laws  of  no 
people,  the  axiom  of  no  government,  the  institutes  of  no  society,  and  scarcely 
in  the  temper  of  any  man.     Even  the  reformers  were  as  furious  against  con- 


140  Clmrch  and  State  in  the  United  States. 

tumacious  errors,  as  they  were  loud  in  asserting  the  liberty  of  conscience. 
And  to  the  wilds  of  America,  peopled  by  a  stock  cut  off  by  persecution  from  a 
Christian  society,  does  Christianity  owe  true  freedom  of  religious  opinion  and 
religious  worship.  There  is,  in  this  very  act  of  1700,  a  precision  of  definition, 
and  a  discrimination  so  perfect  between  prosecutions  for  opinions  seriously, 
temperately,  and  argumentatively  expressed,  and  despiteful  railings,  as  to 
command  our  admiration  and  reverence  for  the  enlighted  framers.  From  the 
time  of  Bracton,  Christianity  has  been  received  as  part  of  the  common  law 
of  England.  I  will  not  go  back  to  remote  periods,  but  state  a  series  of  prom- 
inent decisions,  in  which  the  doctrine  is  to  be  found.  The  King  v.  Taylor, 
Ventr.  93.  3  Keb.  507,  the  defendant  was  convicted  on  information  for  saying, 
that  Christ  Jesus  was  a  bastard,  a  whore-master,  and  religion  a  cheat.  Lord 
Chief  Baron  Hale,  the  great  and  the  good  Lord  Hale  (no  stickler  for  church 
establishments)  observed,  '  that  such  kind  of  wicked  and  blasphemous 
words  were  not  only  an  offence  against  God  and  religion,  but  against  the  laws 
of  the  state  and  government,  and  therefore  punishable  ;  that  to  say.  religion  is 
a  cheat,  is  to  dissolve  all  those  obligations  by  which  civil  societies  are  pre- 
served ;  and  that  Christianity  is  part  of  the  law  of  Englatid,  and  therefore  to 
reproach  the  Christian  religion  is  to  speak  in  subversion  of  the  laws.'  In  the 
case  of  The  King  v.  Woolasion,  2  Stra.  884  ;  Fitzg.  64 ;  Raymond,  162,  the 
defendant  had  been  convicted  of  publishing  five  libels,  ridiculing  the  miracles 
of  Jesus  Christ,  his  life  and  conversation  ;  and  was  moved  in  arrest  of  judgment, 
that  this  offence  was  not  punishable  in  the  temporal  courts,  but  the  court  said, 
they  would  not  suffer  it  to  be  debated,  '  whether  to  write  against  Christianity 
generally  was  not  an  offence  of  temporal  cognizance.'  It  was  further  contended, 
that  it  was  merely  to  show  that  those  miracles  were  not  to  be  taken  in  a  literal 
but  allegorical  sense  ;  and,  therefore,  the  book  could  not  be  aimed  at 
Christianity  in  general,  but  merely  attacking  one  proof  of  the  divine  mission. 
But  the  court  said,  the  main  design  of  the  book,  though  professing  to  establish 
Christianity  upon  a  true  bottom,  considers  the  narrations  of  scripture  as  explan- 
ative  and  prophetical,  yet  that  these  professions  could  not  be  credited,  and  the 
rule  is  allcgatio  contra  factum  7ion  estadmittendu??:.  In  that  case  the  Court  laid 
great  stress  on  the  term  general,  and  did  not  intend  to  include  disputes  between 
learned  men  on  particular  and  controverted  points,  and  Lord  Chief  Justice 
Raymond,  Fitzg.  66,  said,  '  I  would  have  it  taken  notice  of,  that  we  do  not 
meddle  with  the  difference  of  opinion,  and  that  we  interfere  only  where  the 
root  of  Christianity  is  struck  at.'  The  information  filed  against  the  celebrated 
Wilkes  was  for  publishing  an  obscene  and  infamous  libel,  tending  to  vitiate 
and  corrupt  the  minds  of  the  subjects,  and  to  introduce  a  total  contempt  of 
religion,  morality  and  virtue,  to  blaspheme  Almighty  God,  to  ridicule  our 
Saviour,  and  the  Christian  religion.  In  the  justly  admired  speech  of  Lord 
Mansfield,  in  a  case  which  made  much  noise  at  the  time — Evens  V.  Chamber- 
lain 0/  London.  Furneauxs  Letters  to  Sir  IV.  Blackstone.  Appx.  to  Black. 
Com.  and  2  Burns'  Eccles.  Law,  p.  95,  Conscience,  he  observed,  is  not  con- 
trollable by  human  laws,  nor  amenable  to  human  tribunals  ;  persecution,  or 
attempts  to  force  conscience,  will  never  produce  conviction,  and  were  only 
calculated  to  make  hypocrites  or  martyrs.     There  never  was  a  single  instance 


Documents.  141 

from  the  Saxon  times  down  to  our  own,  in  which  a  man  was  punished  for 
erroneous  opinions.  For  atheism,  blasphemy,  and  reviling  the  Christian 
religion,  there  have  been  instances  of  prosecution  at  the  common  law  ;  but  bare 
non-conformity  is  no  sin  by  the  common  law,  and  all  pains  and  penalties  for 
non-conformity  to  the  established  rites  and  modes  are  repealed  by  the  acts  of 
toleration,  and  dissenters  exempted  from  ecclesiastical  censures.  What  blood- 
shed and  confusion  have  been  occasioned  from  the  reign  of  Henry  IV,,  when 
the  first  penal  statutes  were  enacted,  down  to  the  revolution,  by  laws  made  to 
force  conscience.  There  is  certainly  nothing  more  unreasonable,  nor  incon- 
sistent with  the  rights  of  human  nature,  more  contrary  to  the  spirit  and  precepts 
of  the  Christian  religion,  more  iniquitous  and  unjust,  more  impolitic,  than 
persecution  against  natural  religion,  revealed  religion  and  sound  policy.  The 
great,  and  wise,  and  learned  judge  observes,  '  The  true  principles  of  natural 
religion  are  part  of  the  common  law  ;  the  essential  principles  of  revealed 
religion  are  part  of  the  common  law  ;  so  that  a  person  villifying,  subvening  or 
ridiculing  them  may  be  prosecuted  at  common  law  ;  but  temporal  punishments 
ought  not  to  be  inflicted  for  mere  opinions.'  Long  before  this,  much  suffering, 
and  a  mind  of  strong  and  liberal  cast,  had  taught  this  sound  doctrine  and  this 
Christian  precept  to  William  Penn.  The  charter  of  Charles  II.  recites,  that 
'  Whereas  our  trusty  and  beloved  William  Penn,  out  of  a  commendable  desire 
to  enlarge  our  English  empire,  as  also  to  reduce  the  savages,  by  gentle  and 
just  measures,  to  the  love  of  civil  society,  and  the  Christian  religion,  hath 
humbly  besought  our  leave  to  translate  a  colony,'  etc.  The  first  legislative 
act  in  the  colony  was  the  recognition  of  the  Christian  religion,  and  establish- 
ment of  liberty  of  conscience.  Before  this,  in  1646,  Lord  Baltimore  passed  a 
law  in  Maryla7td\x\.  favour  of  religious  freedom,  and  it  is  a  memorable  fact, 
that  of  the  first  legislators,  who  established  religious  freedom,  one  was  a 
Roman  Catholic  and  the  other  a  Friend.  It  is  called  the  rjreat  law,  of  the  body 
of  laws,  in  the  province  of  Pennsylvania,  passed  at  an  assembly  at  Chester,  the 
7th  of  the  I2th  month,  December.  After  the  following  preamble  and  declara- 
tion, viz.  :  '  Whereas  ye  glory  of  Almighty  God,  and  ye  good  of  mankind,  is 
ye  reason  and  end  of  government,  and  therefore  goveniment  in  itself  is  a  vener- 
able ordinance  of  God  ;  and  forasmuch  as  it  is  principally  desired  and  intended 
by  ye  proprietary  and  governor,  and  ye  freedom  of  ye  province  of  Pennsylvania, 
and  territorys  thereunto  belonging,  to  make  and  establish  such  laws  as  shall 
best  preserve  true  Christians  and  civil  liberty,  in  opposition  to  all  unchristian, 
licentious,  and  unjust  practices,  whereby  God  may  have  his  due,  Caesar  his 
due,  and  ye  people  their  due,  from  tyranny  and  oppression  on  ye  one  side,  and 
insolency  and  licentiousness  on  ye  other,  so  that  ye  best  and  firmest  foundation 
may  be  laid  for  ye  present  and  future  happiness  both  of  ye  governor  and  people 
of  this  province  and  territorys  aforesaid,  and  their  posterity :  He  it  therefore 
enacted  by  William  Penn,  proprietary  and  governor,  by  and  with  ye  advice 
and  consent  of  ye  deputys  of  ye  freemen  of  this  province  and  counties  afore- 
said in  assembly  mett,  and  by  ye  authority  of  ye  same,  that  these  following 
chapters  and  paragraphs  shall  be  the  laws  of  Pennsylvania  and  the  territorys 
thereof.' 

"  '  Almighty  God,  being  only  Lord  of  conscience.  Father  of  lyghts  and  spir- 


142  CJnircJi  and  State  in  the  United  States.  ^ 

its,  and  ye  author  as  well  as  object  of  all  divine  knowledge,  faith,  and  worship, 
who  only  can  enlighten  ye  minds,  and  persuade  and  convince  ye  understand- 
ings of  people  in  due  reverence  to  his  sovereignty  over  the  souls  of  mankind  : 
It  is  enacted  by  the  authority  aforesaid,  yt  no  person  at  any  time  hereafter  liv- 
ing in  this  province,  who  shall  confess  and  acknowledge  one  Almighty  God  to 
be  ye  creator,  upholder,  and  ruler  of  ye  world,  and  that  professeth  him  or  her- 
self obliged  in  conscience  to  live  peaceably  and  justly  under  ye  civil  govern- 
ment, shall  in  any  wise  be  molested  or  prejudiced  for  his  or  her  conscientious 
persuasion  or  practice,  nor  shall  he  or  she  at  any  time  be  compelled  to  frequent 
or  maintain  any  religious  worship,  plan  or  ministry,  whatever,  contrary  to  his 
or  her  mind,  but  shall  freely  and  fully  enjoy  his  or  her  Christian  liberty  in  yt 
respect,  without  any  interruption  or  reflection  ;  and  if  any  person  shall  abuse 
or  deride  any  other  for  his  or  her  different  persuasion  and  practice  in  a  matter 
of  religion,  such  shall  be  lookt  upon  as  a  disturber  of  ye  peace,  and  be  pun- 
ished accordingly.'  And  to  the  end  that  looseness,  irreligion,  and  atheism 
may  not  creep  in  under  the  pretence  of  conscience,  it  provides  for  the  obser- 
vance of  the  Lord's  day,  punishes  profane  cursing  and  swearing,  and  further 
enacts,  for  the  better  preventing  corrupt  communication,  '  that  whoever  shall 
speak  loosely  and  profanely  of  Almighty  God,  Christ  Jesus,  the  Holy  Spirit,  or 
Scriptures  of  Truth,  and  is  thereof  legally  convicted,  shall  forfeit  and  pay  5 
pounds,  and  be  imprisoned  for  five  days  in  the  house  of  correction.'  Thus 
this  wise  legislature  framed  this  great  body  of  laws  for  a  Christian  country  and 
Christian  people.  Infidelity  was  then  rare,  and  no  infidels  were  among  the  first 
colonists.  They  fled  from  religious  intolerance,  to  a  country  where  all  were 
allowed  to  worship  according  to  their  own  understanding,  and  as  was  justly 
observed  by  the  learned  Chancellor  of  the  associated  members  of  the  Bar  of 
Philadelphia,  in  the  city  of  Philadelphia,  in  his  address  to  that  body,  22  of 
June,  1822,  the  number  of  yews  was  too  inconsiderable  to  excite  alarm,  and 
the  believers  in  Alahomet  were  not  likely  to  intrude.  Every  one  had  the  right 
of  adopting  for  himself  whatever  opinion  appeared  to  be  the  most  rational,  con- 
cerning all  matters  of  religious  belief  ;  thus,  securing  by  law  this  inestimable 
freedom  of  conscience,  one  of  the  highest  privileges,  and  greatest  interests  of 
the  human  race.  This  is  the  Christianity  of  the  common  law,  incorporated 
into  the  great  law  of  Pennsylvania,  and  thus,  it  is  irrefragably  proved,  that  the 
laws  and  institutions  of  this  state  are  built  on  the  foundation  of  reverence  for 
Christianity.  Here  was  complete  liberty  of  conscience,  with  the  exception  of 
disqualification  for  office  of  all  who  did  not  profess  faith  in  Jesus  Christ. 
This  disqualification  was  not  contained  in  the  constitution  of  1776  ;  the  door 
was  open  to  any  believer  in  a  God,  and  so  it  continued  under  our  present 
constitution,  with  the  necessary  addition  of  a  belief  in  a  future  state  of  rewards 
and  punishments.  On  this  the  constitution  of  the  United  States  has  made  no 
alteration,  nor  in  the  great  body  of  the  laws  which  was  an  incorporation  of 
the  common  law  doctrine  of  Christianity,  as  suited  to  the  condition  of  the  col- 
ony, and  without  which  no  free  government  can  long  exist.  Under  the  con- 
stitution, penalties  against  cursing  and  swearing  have  been  exacted.  If  Chris- 
tianity was  abolished,  all  false  oaths,  all  tests  by  oath  in  the  common  form  by 
the  book,  would  cease  to  be  indictable  as  perjury.     The  indictment  must  state 


Documents. 


143 


the  oath  to  be  on  the  holy  Evangelists  of  Almighty  God.  The  accused  on  his 
trial  might  argue  that  the  book  by  which  he  was  sworn,  so  far  from  being  holy 
writ,  was  a  pack  of  lies,  containing  as  little  truth  as  Robinson  Crusoe.  And  is 
every  jury  in  the  box  to  decide  as  a  fact  whether  the  Scriptures  are  of  divine  origin  ? 

"  Let  us  now  see  what  have  been  the  opinions  of  our  judges  and  courts.  The 
late  Judge  Wilson,  of  the  Supreme  Court  of  the  United  States,  Professor  of 
Law  in  the  College  in  Philadelphia,  was  appointed  in  1791  unanimously  by  the 
House  of  Representatives  of  this  state  to  '  revise  and  digest  the  laws  of  this 
commonwealth,  to  ascertain  and  determine  how  far  any  British  statutes  ex- 
tended to  it,  and  to  prepare  bills  containing  such  alterations  and  additions  as 
the  code  of  laws,  and  the  principles  and  forms  of  the  constitution,  then  lately 
adopted,  might  require.'  He  had  just  risen  from  his  seat  in  the  convention 
which  formed  the  Constitution  of  the  United  States,  and  of  this  state  ;  and  it 
is  well  known,  that  for  our  present  form  of  government  we  are  indebted  to  his 
exertions  and  influence.  With  his  fresh  recollection  of  both  constitutions,  in 
his  course  of  Lectures,  3d  vol.  of  his  works,  112,  he  states  that  profaneness 
and  blasphemy  are  offences  punishable  by  fine  and  imprisonment,  and  that 
Christianity  is  part  of  the  common  law.  It  is  in  vain  to  object  that  the  law 
is  obsolete  ;  this  is  not  so  ;  it  has  seldom  been  called  into  operation,  because 
this,  like  some  other  offences,  has  been  rare.  It  has  been  retained  in  our  re- 
collection of  the  laws  now  in  force,  made  by  the  direction  of  the  legislature, — 
and  it  has  not  been  a  dead  letter. 

"  In  the  Mayor's  Court  of  the  city  of  Philadelphia,  in  1818,  one  jMnrraywas 
convicted  of  a  most  scandalous  blasphemy.  He  attempted  by  advertisement  to 
call  a  meeting  of  the  enemies  of  persecution  ;  but  this  ended  in  mere  vapour  ; 
the  good  sense  of  the  people  frowned  upon  it,  and  he  was  most  justly  sen- 
tenced. An  account  of  the  proceedings  will  be  found  in  the  Franklin  Gazette, 
of  the  2ist  of  November,  iSi8.  If  the  doctrine  advanced  in  the  written  argu- 
ment delivered  to  the  court  was  just,  (and  it  is  but  justice  to  the  counsel  for  the 
plaintiff  in  error  for  the  court  to  acknowledge  the  propriety  of  his  conduct  in 
preferring  this  course  to  a  declamation  in  open  court),  impiety  and  profanity 
must  reach  their  acme  with  impunity,  and  every  debating  club  might  dedicate 
the  club  room  to  the  worship  of  the  Goddess  of  Reason,  and  adore  the  Deitjr 
in  the  person  of  a  naked  prostitute.  The  people  would  not  tolerate  these  fla- 
gitious acts,  and  would  themselves  punish  ;  and  it  is  for  this,  among  other  rea- 
sons, that  the  law  interposes  to  prevent  the  disturbance  of  the  public  peace. 
It  is  sometimes  asked  with  a  sneer,  Why  not  leave  it  to  Almighty  tiod  to  re- 
venge his  own  cause  ?  Temporal  courts  do  so  leave  it.  '  Bold  and  j>resump- 
tuous  would  be  the  man  who  would  attempt  to  arrest  the  thunder  of  heaven 
from  the  hand  of  God,  and  direct  the  bolts  of  vengeance  where  to  fall.'  It  is 
not  on  this  principle  courts  act,  but  on  the  dangerous  temporal  consequences 
likely  to  proceed  from  the  removal  of  religious  and  moral  restraints ;  this  is  the 
ground  of  punishment  for  blasphemous  and  criminal  jiublications  ;  and  with- 
out any  view  to  spiritual  correction  of  the  offender. — 4  Bla.  C,  59/  fits.,  67  ; 
Stark,  on  Libels,  487. 

"  '  Shall  each  blasphemer  <iiiite  escape  the  rod, 
And  plead  the  insult  's  not  to  man  but  God  ?  ' 


144'  Church  and  State  hi  the  United  States. 

"  It  is  not  an  auto  da  fi,  displaying  vengeance  ;  but  a  law,  punishing  with 
great  mildness,  a  gross  offence  against  pubhc  decency  and  public  order,  tending 
directly  to  disturb  the  peace  of  the  commonwealth.  Chief  Justice  Swift,  in  his 
system  of  Laws,  2  vol.,  825,  has  some  very  just  reasoning  on  the  subject. 
He  observes  :  '  To  prohibit  the  open,  public,  and  explicit  denial  of  the  pop- 
ular religion  of  a  country,  is  a  necessary  measure  to  preserve  the  tranquillity  of 
a  government.  Of  this,  no  person  in  a  Christian  country  can  complain  ;  for, 
admitting  him  to  be  an  infidel,  we  must  acknowledge  that  no  benefit  can  be 
derived  from  the  subversion  of  a  religion  which  enforces  the  purest  morality.' 
In  the  Supreme  Court  of  New  York  it  was  solemnly  determined,  that  Christi- 
anity was  part  of  the  law  of  the  land,  and  that  to  revile  the  Holy  Scriptures 
was  an  indictable  offence.  The  case  assumes,  says  Chief  Justice  Kent, 
that  we  are  a  Christian  people,  and  the  morality  of  the  country  is  deeply 
engrafted  on  Christianity.  Nor  are  we  bound  by  any  expression  in  the  con- 
stitution, as  some  have  strangely  supposed,  not  to  punish  at  all,  or  to  punish 
indiscriminately  the  like  attack  upon  Mahomet  or  the  Grand  Lama,  The 
People  V.  Jittggles,  8  Johnston,  290.  This  decision  was  much  canvassed 
in  the  New  York  Convention,  1821.  Debates,  463.  An  article  was 
proposed  in  the  new  constitution,  declaring  that  the  judiciary  should  not 
declare  any  particular  religion  the  law  of  the  land.  This  was  lost  by  a  vote  of 
seventy-four  to  forty-one.  It  is  a  mistake  to  suppose  that  this  decision  was 
founded  on  any  special  provision  in  the  Constitution,  It  has  long  been  firmly 
settled,  that  blasphemy  against  the  Deity  generally,  or  attack  on  the  Christian 
religion  indirectly,  for  the  purpose  of  exposing  its  doctrines  to  ridicule  and  con- 
tempt, is  indictable  and  punishable  as  a  temporal  offence.  The  principles  and 
actual  decisions  are,  that  the  publication,  whether  written  or  oral,  must  be  ma- 
licious, and  designed  for  that  end  and  purpose  ;  both  the  language  of  indict- 
ments, and  the  guarded  expressions  of  judges  show,  that  it  never  was  a  crime  at 
the  common  law,  seriously  and  conscientiously  to  discuss  theological  and  reli- 
gious topics,  though  in  the  course  of  such  discussions  doubts  may  have  been 
created  and  expressed  on  doctrinal  points,  and  the  force  of  a  particular  proof 
of  Scripture  evidence  casually  weakened,  or  the  authority  of  particular  impor- 
tant texts  disputed  ;  and  persons  of  a  different  religion,  as  Jews,  though  they 
must  necessarily  deny  the  authenticity  of  other  religions,  have  never  been  pun- 
ished as  blasphemers  or  libellers  at  common  law  for  so  doing.  All  men,  of 
conscientious  religious  feeling,  ought  to  concede  outward  respect  to  every  mode 
of  religious  worship.  Upon  the  whole,  it  may  not  be  going  too  far  to  infer, 
from  decisions,  that  no  author  or  printer,  who  fairly  and  conscientiously  pro- 
mulgates the  opinions  with  whose  truth  he  is  impressed,  for  the  benefit  of  oth- 
ers, is  answerable  as  a  criminal  ;  that  a  malicious  and  mischievous  intention  is, 
in  such  a  case,  the  broad  boundary  between  right  and  wrong,  and  that  it  is  to  be 
collected  from  the  offensive  levity,  scurrilous  and  opprobrious  language,  and 
other  circumstances,  whether  the  act  of  the  party  was  malicious  ;  and  since  the 
law  has  no  means  of  distinguishing  between  different  degrees  of  evil  tendency, 
if  the  matter  published  contains  any  such  evil  tendency,  it  is  a  public  wrong. 
An  offence  against  the  public  peace  may  consist  either  of  an  actual  breach  of 
the  peace,  or  doing  that  which  tends  to  provoke  and  excite  others  to  do  it. 


Dociiinctits.  145 

Within  the  latter  description  fall  all  acts  and  all  attempts  to  produce  disorder, 
by  written,  printed,  or  oral  communications,  for  the  purpose  of  generally 
weakening  those  religious  and  moral  restraints,  without  the  aid  of  which  mere 
legislative  provisions  would  prove  ineffectual.  No  society  can  tolerate  a  wil- 
ful and  despiteful  attempt  to  subvert  its  religion,  no  more  than  it  would  break 
down  its  laws— a  general,  malicious,  and  deliberate  intent  to  overthrow  Chris- 
tianity, general  Christianity.  This  is  the  line  of  indication,  where  crime  com- 
mences, and  the  offence  becomes  the  subject  of  penal  visitation.  The  species 
of  offence  may  be  classed  under  the  following  heads — i.  Denying  the 
Being  and  Providence  of  God.  2.  Contumelious  reproaches  of  Jesus 
Christ  ;  profane  and  malevolent  scoffing  at  the  Scriptures,  or  exposing  any 
part  of  them  to  contempt  and  ridicule.  3.  Certain  immoralities  tending  to 
subvert  all  religion  and  morality,  which  are  the  foundations  of  all  governments. 
Without  these  restraints  no  free  government  could  long  exist.  It  is  liberty  run 
mad,  to  declaim  against  the  punishment  of  these  offences,  or  to  assert  that  the 
punishment  is  hostile  to  the  spirit  and  genius  of  our  government.  They  are 
far  from  being  true  friends  to  liberty  who  support  this  doctrine,  and  the  pro- 
mulgation of  such  opinions,  and  general  receipt  of  them  among  the  people, 
would  be  the  sure  forerunners  of  anarchy,  and  finally  of  despotism.  Amidst 
the  concurrent  testimony  of  political  and  philosophical  writers  among  the  Pa- 
gans, in  the  most  absolute  state  of  democratic  freedom,  the  sentiments  oi  Plu- 
tarch, on  this  subject,  are  too  remarkable  to  be  omitted.  After  rcciiing  that  the 
first  and  greatest  care  of  the  legislators  of  Rome,  Athens,  Lacedaemon,  and 
Greece  in  general,  was  by  instituting  solemn  supplications  and  forms  of  oaths, 
to  inspire  them  with  a  sense  of  the  favour  or  displeasure  of  Heaven,  that  learned 
historian  declares,  that  we  have  met  with  towns  unfortified,  illiterate,  and  with- 
out the  conveniences  of  habitations  ;  but  a  people  wholly  without  religion,  no 
traveller  hath  yet  seen  ;  and  a  city  might  as  well  be  erected  in  the  air,  as  a  state 
be  made  to  unite,  where  no  divine  worship  is  attended.  Religion  he  terms  the 
cement  of  civil  union,  and  the  essential  support  of  legislation.  No  free  gov- 
ernment now  exists  in  the  world,  unless  where  Christianity  is  acknowledged, 
and  is  the  religion  of  the  country.  So  far  from  Christianity,  as  the  counsel 
contends,  being  part  of  the  machinery  necessary  to  despotism,  the  reverse 
is  the  fact.  Christianity  is  part  of  the  common  law  of  this  state.  It  is  not 
proclaimed  by  the  commanding  voice  of  any  human  superior,  but  expressed  in 
the  calm  and  mild  accents  of  customary  law.  Its  foundations  are  broad,  and 
strong,  and  deep  ;  they  are  laid  in  the  authority,  the  interest,  the  affections  of 
the  people.  Waiving  all  questions  of  hereafter,  it  is  the  purest  system  of  mor- 
ality, the  firmest  auxiliary,  and  only  stable  support  of  all  human  laws.  It  is 
impossible  to  adminster  the  laws  without  taking  the  religion  which  the  defend- 
ant in  error  has  scoffed  at,  that  Scripture  which  he  has  reviled,  as  their  basis; 
to  Ir.y  aside  these  is  at  least  to  weaken  the  confidence  in  human  veracity,  so  es- 
senti.-.l  to  th?  purposes  of  society,  and  without  which  no  (jucstion  of  property 
could  be  decided,  and  no  criminal  brought  to  justice  ;  an  oath  in  the  common 
form,  on  a  discredited  book,  would  be  a  most  idle  ceremony.  This  act  was 
not  passed,  as  the  counsel  supposed,  when  religious  and  civil  tyranny  were  at 
their  height  ;    but  on  the  breaking  forth  of  the  sun  of  religious  liberty,  by  those 


146  CJmrcJi  and  State  in  the  United  States. 

who  had  suffered  much  for  conscience' sake,  and  fled  from  ecclesiastical  oppres- 
sion. The  counsel  is  greatly  mistaken  in  attributing  to  the  common  law  the 
punishment  at  the  stake,  and  by  the  faggot.  No  man  ever  suffered  at  common 
law  for  any  heresy.  The  writ  de  haerctico  comburendo,  and  all  the  sufferings 
which  he  has  stated  in  such  lively  colours,  and  which  give  such  a  frightful, 
though  not  exaggerated  picture,  were  the  enactments  of  positive  laws  equally 
barbarous  and  impolitic.  There  is  no  reason  for  the  counsel's  exclamation. 
Are  these  things  to  be  revived  in  this  country,  where  Christianity  does  not 
form  part  of  the  law  of  the  land  !  It  does  form,  as  we  have  seen,  a  neces- 
sary part  of  our  common  law  ;  it  inflicts  no  punishment  for  a  non-belief  in  its 
truths  ;  it  is  a  stranger  to  fire  and  to  faggots,  and  this  abused  statute  merely 
inflicts  a  mild  sentence  on  him  who  bids  defiance  to  all  public  order,  disregards 
all  decency,  by  contumelious  reproaches,  scoffing  at  and  reviling  that  which  is 
certainly  the  religion  of  the  country  ;  and  when  the  counsel  compared  this  act 
against  blasphemy  to  the  act  against  witchcraft,  and  declared  this  was  equally 
absurd,  I  do  not  impute  to  him  that  which  I  know  his  heart  abhors,  a  scoffing 
at  religion,  but  to  the  triteness  of  the  topics.  It  is  but  a  barren  field,  and  must 
contain  a  repetition  of  that  which  has  been  so  often  refuted.  It  is  not  argu- 
ment. Ke  has  likewise  fallen  into  error  with  respect  to  the  report  of  the  judges 
of  the  Supreme  Court  on  the  British  statute  de  religiosis,  and  of  mortmain, 
parts  of  which  are  not  incorporated,  as  being  inapplicable  to  the  state  of  the 
country  ;  these  statutes  were  made  to  resist  the  encroachments  of  religious  bod- 
ies, in  engrossing  great  landed  estates,  and  holding  them  in  mortmain,  but  these 
are  adopted,  so  far  as  relates  to  the  avoidance  of  conveyances  to  the  use  of 
bodies  corporate,  unless  sanctioned  by  the  charter  declaring  void  all  convey- 
ances to  superstitious  uses.  The  present  statute  is  called  the  statute  de  religi- 
osis, from  the  initiatory  words  of  the  act.  It  clipped  the  wings  of  ecclesiasti- 
cal monopoly,  and  avoided  conveyances  to  superstitious  uses,  but  had  no  more 
relation  to  the  doctrines  of  Christ  than  of  Mahomet ;  the  counsel  has  con- 
founded the  name  de  religiosis  with  the  doctrines  of  Christianity,  and  drawn  a 
false  conclusion  ;  because  the  statute  de  religiosis  was  not  applicable  to  the 
.country,  therefore  religion  itself  was  not,  and  because  they  incorporated  only 
part  of  the  statutes  avoiding  conveyances  to  superstitious  uses,  therefore  Chris- 
tianity was  superstition,  and  is  abolished.  This  argument  is  founded  on  mis- 
conception, and  is  a  nullity.  The  plaintiff  in  error  has  totally  failed  to  support 
his  grand  objection  to  this  indictment,  for  Christianity  is  part  of  the  common 
law.  The  act  against  blasphemy  is  neither  obsolete  nor  virtually  repealed,  nor 
is  Christianity  inconsistent  with  our  free  governments  or  the  genius  of  the 
people. 

"  As  I  understand,  this  writ  of  error  was  taken  out  with  a  view  to  decide  the 
question,  whether  Christianity  was  part  of  the  law  of  the  land,  and  whether  it 
was  consistent  with  our  civil  institutions.  I  have  considered  it  a  duty  to  be 
thus  explicit.  No  preference  is  given  by  law  to  any  particular  religious  per- 
suasion. Protection  is  given  to  all  by  our  laws.  It  is  only  the  malicious  re- 
viler  of  Christianity  who  is  punished.  By  general  Christianity  is  not  intended 
the  doctrine  of  worship  of  any  particular  church  or  sect  ;  the  law  leaves  these 
disputes  to  theologians  ;  it  is  not  known  as  a  standard  by  which  to  decide  po- 


Documents. 


147 


litical  dogmas.  The  worship  of  the  Jews  is  under  the  protection  of  the  law, 
and  all  prosecutions  against  Unitarians  have  been  discontinued  in  England, 
The  statute  of  William  III.  Ch.  3,  with  its  penalties  against  Anti-Trinita- 
rians, is  repealed,  and  it  never  was  punishable  at  common  law  ;  and  no  partial 
mode  of  belief  or  unbelief  were  the  objects  of  coercion  by  the  civil  magistrate. 
Whatever  doctrines  were  heretical,  were  left  to  the  ecclesiastical  judges,  who 
had  a  most  arbitrary  latitude  allowed  to  them.  Freedom  from  the  demon  of 
persecution,  and  the  scourge  of  established  churches  was  not  on  \.)\t  European, 
but  on  our  side  of  the  Atlantic.  I  do  not  by  this  allude  to  any  particular 
church,  for  the  Puritans  in  turn  became  persecutors,  when  they  got  the  upper 
hand.  By  an  ordinance  of  23d  of  Atigttst,  1645,  which  continued  until  the 
restoration,  to  preach,  write  or  print  any  thing  in  derogation,  or  disapproving 
of  the  directory  to  the  established  puritanical  form  of  worship,  subject  the  of- 
fender, when  convicted,  to  a  discretionary  fine,  not  exceeding  fifty  pounds. 
Scofill,  98.  While  our  own  free  constitution  secures  liberty  of  conscience  and 
freedom  of  religious  worship  to  all,  it  is  not  necessary  to  maintain  that  any  man 
should  have  the  right  publicly  to  vilify  the  religion  of  his  neighbours  and  of  the 
country.  These  two  privileges  are  directly  opposed.  It  is  open,  public  vilifi- 
cation of  the  religion  of  the  country  that  is  punished,  not  to  force  conscience 
by  punishment,  but  to  preserve  the  peace  of  the  country  by  an  outward  re- 
spect to  the  religion  of  the  country,  and  not  as  a  restraint  upon  the  liberty  of 
conscience  ;  but  licentiousness  endangering  the  public  peace,  when  tending  to 
corrupt  society,  is  considered  as  a  breach  of  the  peace,  and  punishable  by  in- 
dictment. Every  immoral  act  is  not  indictable,  but  when  it  is  destructive  of 
morality  generally,  it  is  because  it  weakens  the  bonds  by  which  society  is  held 
together,  and  government  is  nothing  more  than  public  order.  This  was  the 
opinion  of  the  court  in  the  case  of  Commonwealth  v.  Sharpless,  2  Serg.  &* 
Raivle,  lor.  It  is  not  now,  for  the  first  time,  determined  in  this  court,  that 
Christianity  is  part  of  the  common  law  of  Pennsylvania.  In  the  case  of  the 
Guardians  of  the  Poor  \.  Green,  5  Binn.,  ^^,  Judge  Brackenbridge  ohscT\cil, 
the  church  establishment  of  England  has  become  a  part  of  the  common  law,  but 
was  the  common  law  in  this  particular,  or  any  part  of  it,  carried  with  us  in  our 
emigration  and  planting  a  colony  in  Pennsylvania  ?  Not  a  particle  of  it.  On 
the  contrary,  the  getting  quit  of  the  ecclesiastical  establishment  and  tyranny 
was  a  great  cause  of  the  emigration.  All  things  were  reduced  to  a  primitive 
Christianity,  and  we  went  into  a  new  State.  And  Ch\ci  Justice  Tilghman  ob- 
serves, that  every  country  has  its  own  common  law  ;  ours  is  composed  partly 
of  our  own  usages.  When  our  ancestors  emigrated  from  England,  they  t(X)k 
with  them  such  of  the  English  principles  as  were  convenient  for  the  situation 
in  which  they  were  about  to  be  placed.  It  required  time  and  experience  to  as- 
certain how  much  of  the  English  law  would  be  suitable  to  this  countrj*.  The 
minds  of  IVilliam  Penn  and  his  followers  would  have  revolted  at  the  idea  of 
an  established  church.  Liberty  to  all,  preference  to  none  ;  ccjual  privilege  is 
extended  to  the  mitred  Bishop  and  the  unadorned  Friend. 

"  This  is  the  Christianity  which  is  the  law  of  our  land,  and  I  do  not  think  it 
will  be  an  invasion  of  any  man's  right  of  private  judgment,  or  of  the  most  ex- 
tended privilege  of  propagating  his  sentiments  with  regard  to  religion,  in  the 


148  Church  and  State  in  the  United  States. 

manner  which  he  thinks  most  conclusive.  If  from  a  regard  to  decency  and 
the  good  order  of  society,  profane  swearing,  breach  of  the  Sabbath,  and  blas- 
phemy, are  punishable  by  civil  magistrates,  these  are  not  punished  as  sins  of  of- 
fences against  God,  but  crimes  injurious  to,  and  having  a  malignant  influence 
on  society  ;  for  it  is  certain,  that  by  these  practices,  no  one  pretends  to  prove 
any  supposed  truths,  detect  any  supposed  error,  or  advance  any  sentiment 
whatever." 

DOCUMENT  X. 

Christianity  a  Part  of  the  Common  Law  of  New  York. 
Decision  in  the  case  of  the  People  vs.  Ruggles,  Aug.,  181 1. 

"  New  York  Supreme  Court  Reports,  by  W.  Johnson,"  vol.  viii.,  page  293, 
Philadelphia.     Kent,  Ch.  J.  gives  the  judgment : 

"  Why  should  not  the  language  contained  in  the  indictment  be  still  an 
offence  with  us  ?  There  is  nothing  in  our  manners  or  institutions  which  has 
prevented  the  application  or  the  necessity  of  this  part  of  the  common  law. 
We  stand  equally  in  need,  now  as  formerly,  of  all  that  moral  discipline,  and  of 
those  principles  of  virtue,  which  help  to  bind  society  together.  The  people  of 
this  state,  in  common  with  the  people  of  this  country,  profess  the  general  doc- 
trines of  Christianity,  as  the  rule  of  their  faith  and  practice  ;  and  to  scandalize 
the  author  of  these  doctrines  is  not  only,  in  a  religious  point  of  view, 
extremely  impious,  but,  even  in  respect  to  the  obligations  due  to  society,  is  a 
gross  violation  of  decency  and  good  order.  Nothing  could  be  more  offensive 
to  the  virtuous  part  of  the  community,  or  more  injurious  to  the  tender  morals 
of  the  young,  than  to  declare  such  profanity  lawful.  It  would  go  to  confound 
all  distinction  between  things  sacred  and  profane  ;  for,  to  use  the  words  of 
one  of  the  greatest  oracles  of  human  wisdom,  '  profane  scoffing  doth  by  little 
and  little  deface  the  reverence  for  religion  ; '  and  who  adds,  in  another  place, 
'  two  principal  causes  have  I  ever  known  of  atheism — curious  controversies 
and  profane  scoffing.'  (Lord  Bacon's  Works,  vol.  2,  2gi,  503.)  Things 
•which  corrupt  moral  sentiment,  as  obscene  actions,  prints  and  writings,  and 
even  gross  instances  of  seduction,  have  upon  the  same  principle  been  held 
indictable  ;  and  shall  we  form  an  exception  in  these  particulars  to  the  rest  of 
the  civilized  world  ?  No  government  among  any  of  the  polished  nations  of 
antiquity,  and  none  of  the  institutions  of  modern  Europe,  (a  single  and  moni- 
tory case  excepted),  ever  hazarded  such  a  bold  experiment  upon  the  solidity  of 
the  public  morals,  as  to  permit  with  impunity  and  under  the  sanction  of  their 
tribunals,  the  general  religion  of  the  community  to  be  openly  insulted  and 
defamed.  The  very  idea  of  jurisprudence  with  the  ancient  lawgivers  and 
philosophers  embraced  the  religion  of  the  country.  Jurisprudentia  est  divina- 
rum  atque  huntattarum  rerum  notitia.  (Dig.,  b.  i,  10,  2  ;  Cic.  De  Legibus,  b. 
2,  passim.) 

"  The  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion,  whatever 
it  may  be,  and  free  decent  discussions  on  any  religious  subject,  is  granted  and 
secured  ;  but  to  revile,  with  malicious  and  blasphemous  contempt,  the  religion 
professed  by  almost  the  whole  community,  is  an  abuse  of  that  right.  Nor  are 
we  bound,  by  any  expressions  in  the  constitution,  as  some  have  strangely  sup- 


Documents.  i^g 

posed,  either  not  to  punish  at  all,  or  to  punish  indiscriminately  the  like  attacks 
upon  the  religion  of  Mahotnct  or  of  the  grand  Lama  ;  and  for  this  plain  rea- 
son, that  the  case  assumes  that  we  are  a  christian  people,  and  the  morality  of 
the  country  is  deeply  ingrafted  upon  Christianity,  and  not  upon  the  doctrines 
or  worship  of  those  impostors.  Besides,  the  offence  is  crimen  malititc,  and 
the  imputation  of  malice  could  not  be  inferred  from  any  invectives  upon  super- 
stitions equally  false  and  unknown.  We  are  not  to  be  restrained  from  ani- 
madversion upon  offences  against  public  decency,  like  those  committed  by  Sir 
Charles  Scdhy,  (l  Sid.,  i63,)or  by  one  Rolb,  {Sayer,  158,)  merely  because  there 
may  be  savage  tribes,  and  perhaps  semi-barbarous  nations,  whose  sense  of 
shame  would  not  be  affected  by  what  we  should  consider  the  most  audacious 
outrages  upon  decorum.  It  is  sufficient  that  the  common  law  checks  upon 
words  and  actions,  dangerous  to  the  public  welfare,  apply  to  our  case,  and  are 
suited  to  the  condition  of  this  and  every  other  people  whose  manners  are  re- 
fined, and  whose  morals  have  been  elevated  and  inspired  with  a  more  enlarged 
benevolence  by  means  of  the  christian  religion. 

"  Though  the  constitution  has  discarded  religious  establishments,  it  does  not 
forbid  judicial  cognizance  of  those  offences  against  religion  and  morality 
which  have  no  reference  to  any  such  establishment,  or  to  any  particular  form 
of  government,  but  are  punishable  because  they  strike  at  the  root  of  moral 
obligation,  and  weaken  the  security  of  the  social  ties.  The  object  of  the 
3Sth  article  of  the  constitution  was  to  '  guard  against  spiritual  oppres- 
sion and  intolerance,'  by  declaring  that  '  the  free  exercise  and  enjoyment 
of  religious  profession  and  worship,  without  discrimination  or  preference, 
should  for  ever  thereafter  be  allowed  within  this  state,  to  all  mankind.'  This 
declaration,  (noble  and  magnanimous  as  it  is  when  duly  understood),  never 
meant  to  withdraw  religion  in  general,  and  with  it  the  best  sanctions  of  moral 
and  social  obligation  from  all  consideration  and  notice  of  the  law.  It  will  be 
fully  satisfied  by  a  free  and  universal  toleration,  without  any  of  the  tests,  disa- 
bilities, or  discriminations,  incident  to  a  religious  establishment.  To  construe 
it  as  breaking  down  the  common  law  barriers  against  licentious,  wanton,  and 
impious  attacks  upon  Christianity  itself,  would  be  an  enormous  perversion  of 
its  meaning.  The  proviso  guards  the  article  from  such  dangerous  latitude  of 
construction  when  it  declares,  that  ^the  liberty  of  conscience  hereby  granted,  shall 
not  be  so  construed  as  to  excuse  acts  of  licentiousness  or  justify  practices  incon- 
sistent with  the  peace  and  safety  of  this  state.'  The  preamble  and  ^Xxx'i proviso 
are  a  species  of  commentary  upon  the  meaning  of  the  article,  and  they  suffi- 
ciently show  that  the  framers  of  the  constitution  intended  only  to  banish  test 
oaths,  disabilities  and  the  burdens,  and  sometimes  the  oppressions,  of  church 
establishments  ;  and  to  secure  to  the  people  of  this  slate,  freedom  from  coercion, 
and  an  equality  of  right,  on  the  subject  of  religion.  Tiiis  was  no  doubt  the 
consummation  of  their  wishes.  It  was  all  that  reasonable  minds  could  require, 
and  it  had  long  been  a  favorite  object,  on  both  sides  of  the  Atlantic,  with  some 
of  the  most  enlightened  friends  to  the  rights  of  mankind,  whose  indignation 
had  been  aroused  by  infringements  of  the  liberty  of  conscience,  and  whose 
zeal  was  inflamed  in  the  pursuit  of  its  enjoyment.  That  this  was  the  meaning 
of  the  constitution   is  further  confirmed  by  a  paragraph  in  a  preceding  article. 


150  Clinrch  and  State  in  the  United  States. 

which  specially  provides  that  '  such  parts  of  the  common  law  as  might  be  con- 
strtied  to  establish  or  maintain  any  particular  denomination  of  christians,  or 
their  ministers,'  were  thereby  abrogated. 

"  The  legislative  exposition  of  the  constitution  is  conformable  to  this  view  of 
it.  Christianity,  in  its  enlarged  sense,  as  a  religion  revealed  and  taught  in  the 
Bible,  is  not  unknown  to  our  law.  The  statute  for  preventing  immorality 
{Laivs,  vol.  I,  224.  R.  S.  675,  s.  6g,  et  seq.)  consecrates  the  fiist  day  of  the 
week,  as  holy  time,  and  considers  the  violation  of  it  as  immoral.  This  was 
only  the  continuation,  in  substance,  of  a  law  of  the  colony  which  declared,  that 
the  profanation  of  the  Lord's  day  was  '  the  great  scandal  of  the  christian 
faith.'  The  act  concerniiig  oaths  {Laws,  vol.  i,  p.  405.  [2  R.  S.  407,  s.  82,]) 
recognises  the  common  law  mode  of  administering  an  oath  'by  laying  the  hand 
on  and  kissing  the  gospels.'  Surely,  then,  we  are  bound  to  conclude  that 
wicked  and  malicious  words,  writings  and  actions  which  go  to  vilify  those 
gospels,  continue,  as  at  common  law,  to  be  an  offence  against  the  public 
peace  and  safety.  They  are  inconsistent  with  the  reverence  due  to  the  ad- 
ministration of  an  oath,  and  among  their  other  evil  consequences,  they  tend  to 
lessen,  in  the  public  mind,  its  religious  sanction. 

"  The  court  are  accordingly  of  opinion  that  the  judgment  below  must  be 
affirmed. 

"Judgment  affirmed." 

DOCUMENT  XL 
The  Constitutionality  of  Sunday  Laws. 

Decision  of  the  Supreme  Court  of  New  York,  February  4,  1861.  Linden- 
muller  vs.  the  People.     The  opinion  was  delivered  by  Judge  J.  Allen. 

From  "  Reports  of  Cases  in  Law  and  Equity  determined  in  the  Supreme 
Court  of  the  State  of  New  York.  By  Oliver  L.  Barbour,  LL.D."  Albany, 
vol.  xxxiii.,  i86r.     Pages  560-578. 

"  The  constitutionality  of  the  law  under  which  Lindenmuller '  was  indicted 
and  convicted  does  not  depend  upon  the  question  whether  or  not  Christianity 
is  a  part  of  the  common  law  of  this  State.  Were  that  the  only  question  in- 
volved, it  would  not  be  difficult  to  show  that  it  was  so,  in  a  qualified  sense — not 
to  the  extent  that  would  authorize  a  compulsory  conformity,  in  faith  and  prac- 
tice, to  the  creed  and  formula  of  worship  of  any  sect  or  denomination,  or  even 
in  those  matters  of  doctrine  and  worship  common  to  all  denominations  styling 
themselves  Christian,  but  to  the  extent  that  entitles  the  Christian  religion  and 
its  ordinances  to  respect  and  protection,  as  the  acknowledged  religion  of  the 
people.  Individual  consciences  may  not  be  enforced  ;  but  men  of  every 
opinion  and  creed  may  be  restrained  from  acts  which  interfere  with  Christian 
worship,  and  which  tend  to  revile  religion  and  bring  it  into  contempt.  The 
belief  of  no  man  can  be  constrained,  and  the  proper  expression  of  religious  be- 
lief is  guaranteed  to  all  ;  but  this  right,  like  every  other  right,  must  be  exer- 
cised with  strict  regard  to  the  equal  rights  of  others  ;  and  when  religious  be- 

*  Gustav  LindenmuUer,  of  the  city  of  New  York,  had  violated  the  law  against  Sunday 
theatres. 


Documents. 


151 


lief  or  unbelief  leads  to  acts  which  interfere  with  the  religious  worship,  and 
rights  of  conscience  of  those  who  represent  the  rehgion  of  the  country,  as 
established,  not  by  law,  but  by  the  consent  and  usage  of  the  community,  and 
existing  before  the  organization  of  the  government,  their  acts  may  be  restrained 
by  legislation,  even  if  they  are  not  indictable  at  common  law.  Christianity  is 
not  the  legal  relation  of  the  State,  as  established  by  law.  If  it  were,  it  would 
be  a  civil  or  political  institution,  which  it  is  not  ;  but  this  is  not  inconsistent 
with  the  idea  that  it  is  in  fact,  and  ever  has  been,  the  religion  of  the  people. 
This  fact  is  everywhere  prominent  in  all  our  civil  and  political  history,  and 
has  been,  from  the  first,  recognised  and  acted  upon  by  the  people,  as  well  as 
by  constitutional  conventions,  by  legislatures,  and  by  courts  of  justice. 

"  It  is  not  disputed  that  Christianity  is  a  part  of  the  common  law  of  Eng- 
land ;  and  in  Hex  v.  IVoolston  (Sir.  83  j),  the  Court  of  King's  Bench  would 
not  suffer  it  to  be  debated,  whether  to  write  against  Christianity  in  general  was 
not  an  offence  punishable  in  the  temporal  courts  at  common  law.  The  com- 
mon law,  as  it  was  in  force  on  the  20th  day  of  April,  1777,  subject  to  such 
alterations  as  have  been  made,  from  time  to  time,  by  the  Legislature,  and  ex- 
cept such  parts  of  it  as  are  repugnant  to  the  Constitution,  is,  and  ever  has  been, 
a  part  of  the  law  of  the  State.  (Const.  0/1846,  art.  i.  §  17  ;  Const.  0/1821, 
art.  7,  §  13  ;  Const.  0/  I'j'JT,  §  25.)  The  claim  is,  that  the  constitutional 
guaranties  for  the  free  exercise  and  enjoyment  of  religious  profession  and  wor- 
ship are  inconsistent  with  and  repugnant  to  the  recognition  of  Christianity,  as 
the  religion  of  the  people,  entitled  to,  and  within  the  protection  of,  the  law. 
It  would  be  strange,  that  a  people.  Christian  in  doctrine  and  worship,  many 
of  whom,  or  whose  forefathers,  had  sought  these  shores  for  the  privilege  of 
worshipping  God  in  simplicity  and  purity  of  faith,  and  who  regarded  religion 
as  the  basis  of  their  civil  liberty,  and  the  foundation  of  their  rights,  should,  in 
their  zeal  to  secure  to  all  the  freedom  of  conscience  which  they  valued  so  highly, 
solemnly  repudiate  and  put  beyond  the  pale  of  the  law,  the  religion  which  was 
dear  to  them  as  life,  and  dethrone  the  God  who,  they  openly  and  avowedly 
professed  to  believe,  had  been  their  protector  and  guide  as  a  people.  Unless 
they  were  hypocrites,  which  will  hardly  be  charged,  they  would  not  have 
dared,  even  if  their  consciences  would  have  suffered  them,  to  do  so.  Re- 
ligious tolerance  is  entirely  consistent  with  a  recognised  religion.  Christianity 
may  be  conceded  to  be  the  established  religion,  to  the  qualified  extent 
mentioned,  while  perfect  civil  and  political  ecjuality,  with  freedom  of  conscience 
and  religious  preference,  is  secured  to  individuals  of  every  other  creed  and  pro- 
fession. To  a  very  moderate  and  qualified  extent,  religious  toleration  was  se- 
cured to  the  people  of  the  colony,  by  the  charter  of  liberties  and  privileges, 
granted  by  his  royal  highness  to  the  inhabitants  of  New  York  and  its  de|>cn- 
dencies  in  16S3  (2  R.  L.  app.  No.  2),  but  was  more  amply  provided  for  in  the 
Constitution  of  1777.  It  was  then  placed  substantially  upon  the  same  footing 
on  which  it  now  stands.  The  Constitution  of  1777.  §  38,  ordained  that  the 
free  exercise  and  enjoyment  of  religious  profession  and  worship,  without  dis- 
crimination or  preference,  should  for  ever  thereafter  be  allowed,  providiJ  that 
the  liberty  of  conscience  thereby  guaranteed  should  not  be  so  construed  as  to 
excuse  acts  of  licentiousness,  or  justify  practices  inconsistent  with  the  peace  or 


152  Church  and  State  hi  the  United  States. 

safety  of  the  State.  The  same  provision  was  incorporated  in  the  Constitution 
of  1821,  art.  7,  §  3,  and  in  that  of  1S46,  art.  i,  §  3.  The  Convention  that 
framed  the  Constitution  of  1777  ratified  and  approved  the  Declaration  of  In- 
dependence, and  prefixed  it  to  the  Constitution  as  a  part  of  the  preamble  ;  and 
in  that  instrument  a  direct  and  solemn  appeal  is  made  '  to  the  Supreme  Judge 
of  the  world,'  and  a  '  firm  reliance  on  the  protection  of  Divine  Providence  ' 
for  the  support  of  the  Declaration  is  deliberately  professed.  The  people,  in 
adopting  the  Constitution  of  1821,  expressly  acknowledged  with  '  gratitude 
the  grace  and  beneficence  of  God,'  in  permitting  them  to  make  choice  of  their 
form  of  government  ;  and  in  ratifying  the  Constitution  of  1846,  declare  them- 
selves '  grateful  to  Almighty  God '  for  their  freedom.  The  first  two  constitu- 
tions of  the  State,  reciting  that  "  ministers  of  the  gospel  are  by  their  profession 
dedicated  to  the  service  of  God  and  the  cure  of  souls,  and  ought  not  to  be  di- 
verted from  the  great  duties  of  their  function,'  declared  that  no  '  minister  of 
the  gospel  or  priest  of  any  denomination  whatsoever  should  be  eligible  to  or 
hold  any  civil  or  military  office  within  the  State  ;  '  and  each  of  the  constitu- 
tions has  required  an  oath  of  office  from  all  except  some  of  the  inferior  officers 
taking  office  under  it. 

"  These  provisions  and  recitals  very  clearly  recognise  some  of  the  fundamental 
principles  of  the  Christian  religion,  and  are  certainly  very  far  from  ignoring 
God  as  the  supreme  Ruler  and  Judge  of  the  universe,  and  the  Christian 
religion  as  the  religion  of  the  people,  embodying  the  comm.on  faith  of  the 
community,  with  its  ministers  and  ordinances,  existing  without  the  aid  of,  or 
political  connection  with,  the  State,  but  as  intimately  connected  with  a  good 
government,  and  the  only  sure  basis  of  sound  morals. 

'  The  several  constitutional  conventions  also  recognise  the  Christian  religion 
as  the  religion  of  the  State,  by  opening  their  daily  sessions  with  prayer,  by 
themselves  observing  the  Christian  Sabbath,  and  by  excepting  that  day  from 
the  time  allov/ed  to  the  Governor  for  returning  bills  to  the  Legislature. 

"  Different  denominations  of  Christians  are  recognised,  but  this  does  not  de- 
tract from  the  force  of  the  recognition  of  God  as  the  only  proper  object  of  re- 
ligious worship,  and  the  Christian  religion  as  the  religion  of  the  people,  which 
it  was  not  intended  to  destroy,  but  to  maintain.  The  intent  was  to  prevent 
the  unnatural  connection  between  Church  and  State,  which  had  proved  as  cor- 
rupting and  detrimental  to  the  cause  of  pure  religion  as  it  had  been  oppressive 
to  the  conscience  of  the  individual.  The  founders  of  the  government  and  the 
framers  of  our  constitutions  believed  that  Christianity  would  thrive  better,  that 
purity  in  the  Church  would  be  promoted,  and  the  interests  of  religion  advanced, 
by  leaving  the  individual  conscience  free  and  untrammelled,  precisely  in  ac- 
cordance with  the  '  benevolent  principles  of  rational  liberty,'  which  guarded 
against  '  spiritual  oppression  and  intolerance  ; '  and  '  wisdom  is  justified  of 
her  children  '  in  the  experiment,  which  could  hardly  be  said,  if  blasphemy. 
Sabbath-breaking,  incest,  polygamy,  and  the  like,  were  protected  by  the  Con- 
stitution. They  did,  therefore,  prohibit  the  establishment  of  a  state  religion, 
with  its  enabling  and  disabling  statutes,  its  test  oaths  and  ecclesiastical  courts,' 
and  all  the  pains  and  penalties  of  non-conformity,  which  are  only  snares  to  the 
conscience,   and  every  man  is   left   free   to  worship   God  according   to   the 


Documents.  ic« 

dictates  of  his  own  conscience,  or  not  to  worship  him  at  all,  as  he  pleases. 
But  they  did  not  suppose  they  had  abolished  the  Sabbath  as  a  day  of  rest  for 
all,  and  of  Christian  worship  for  those  who  were  disposed  to  engage  in  it,  or 
had  deprived  themselves  of  the  power  to  protect  their  God  from  blasphemy  and 
revilings,  or  their  religious  worship  from  unseemly  interruptions.  Compulsory 
worship  of  God  in  any  form  is  prohibited,  and  every  man's  opinion  on  matters  of 
religion,  as  in  olher  matters,  is  beyond  the  reach  of  law.  No  man  can  be  com- 
pelled to  perform  any  act  or  omit  any  act  as  a  duty  to  God  ;  but  this  liberty  of  con. 
science  in  matters  of  faith  and  practice  is  entirely  consistent  with  the  existence, 
in  fact,  of  the  Christian  religion,  entitled  to  and  enjoying  the  protection  of  the 
law,  as  the  religion  of  the  people  of  the  State,  and  as  furnishing  the  best  sanc- 
tions of  moral  and  social  obligations.  The  public  peace  and  public  welfare 
are  greatly  dependent  upon  the  protection  of  the  religion  of  the  countrj'.  and 
the  preventing  or  punishing  of  offences  against  it,  and  acts  wantonly  com- 
mitted subversive  of  it.  The  claim  of  the  defence,  carried  to  its  necessary 
sequence,  is  that  the  Bible  and  religion,  with  all  its  ordinances,  including  the 
Sabbath,  are  as  effectually  abolished  as  they  were  in  France  during  the  Revolu- 
tion, and  so  effectually  abolished  that  duties  may  not  be  enforced  as  duties  to 
the  State,  because  they  have  been  heretofore  associated  with  acts  of  religious 
worship,  or  connected  with  religious  duties.  A  provision  similar  to  ours  is 
found  in  the  Constitution  of  Pennsylvania  ;  and  in  Vidals.  GirarX s  Executors 
(2  How.  127),  the  question  was  discussed  whether  the  Christian  religion  was  a 
part  of  the  common  law  of  that  State  ;  and  Justice  Story,  in  giving  judgment, 
at  page  198,  after  referring  to  the  qualifications  in  the  Constitution,  says : 
'  So  that  we  are  compelled  to  admit,  that  although  Christianity  be  a  part  of 
the  common  law  of  the  State,  yet  it  is  so  in  this  qualified  sense,  that  its  divine 
origin  and  truth  are  admitted,  and  therefore  it  is  not  to  be  maliciously  and 
openly  reviled  and  blasphemed  against,  to  the  annoyance  of  believers  or  the 
injury  of  the  public'  The  same  principle  was  decided  by  the  State  Court,  in 
Updegraph  v.  Commonwealth  (11  .S".  d^  R.  349).  The  same  is  held  in  Arkansas 
{Show  V.  State,  5  Ettg.  259).  In  our  own  State,  in  People  v.  Rttggles  (?>  John. 
291),  the  Court  held  that  blasphemy  against  God,  and  contumelious  reproach 
and  profane  ridicule  of  Christ  or  the  Holy  Scriptures,  were  offences  punish- 
able at  the  common  law  in  this  State,  as  public  offences.  Chief-Justice  Kent 
says,  that  to  revile  the  religion  professed  by  almost  the  whole  community  is  an 
abuse  of  the  right  of  religious  opinion  and  free  discussion,  secured  by  the  Con- 
stitution, and  that  the  Constitution  does  not  secure  the  same  regard  to  the 
religion  of  Mohammed  or  of  the  Grand  Lama,  as  to  that  of  our  Saviour,  for 
the  plain  reason  that  we  are  a  Christian  people,  and  the  morality  of  the  coun- 
try is  deeply  engrafted  upon  Christianity.  He  says,  further,  that  the  Consti- 
tution '  will  be  fully  satisfied  by  a  free  and  universal  toleration,  without  any 
of  the  tests,  disabilities,  or  discriminations  incident  to  a  religious  establishment. 
To  construe  it  as  breaking  down  the  common  law  barriers  against  licentious, 
wanton,  and  impious  attacks  upon  Christianity  itself,  would  be  an  enormous 
perversion  of  its  meaning.' 

"  This  decision  gives  a  practical  construction  to  the  '  toleration  '  clause  in  the 
State  Constitution,  and  limits  its  effect  to  a  prohibition  of  a  church  establish- 


154  CJnirch  atid  State  i?i  the  United  States. 

ment  by  the  State,  and  of  all  '  discrimination  or  preference  '  among  the  sev- 
eral sects  and  denominations  in  the  '  free  exercise  and  enjoyment  of  religious 
profession  and  worship.'  It  does  not,  as  interpreted  by  this  decision,  prohibit 
the  courts  or  the  Legislature  from  regarding  the  Christian  religion  as  the  reli- 
gion of  the  people,  as  distinguished  from  the  false  religions  of  the  world.  This 
judicial  interpretation  has  received  the  sanction  of  the  constitutional  Conven- 
tion of  rS2l,  and  of  the  people  of  the  State  in  the  ratification  of  that  Consti- 
tution, and  again  in  adopting  the  Constitution  of  1846. 

"  It  was  conceded  in  the  Convention  of  1821  that  the  court  in  People  v.  Rug- 
glcs  did  decide  that  the  Christian  religion  was  the  law  of  the  land,  in  the  sense 
that  it  was  preferred  over  all  other  religions,  and  entitled  to  the  recognition 
and  protection  of  the  temporal  courts  by  the  common  law  of  the  State  ; 
and  the  decision  was  commented  on  with  severity  by  those  who  re- 
garded it  as  a  violation  of  the  freedom  of  conscience  and  equality 
among  religionists  secured  by  the  Constitution.  Mr.  Root  proposed  an  amend- 
ment to  obviate  that  decision,  alleged  by  him  to  be  against  the  letter  and  spirit 
of  the  Constitution,  to  the  effect  that  the  judiciary  should  not  declare  any  par- 
ticular religion  to  be  the  law  of  the  land.  The  decision  was  vindicated  as  a 
just  exponent  of  the  Constitution  and  the  relation  of  the  Christian  religion  to 
the  State  ;  and  the  amendment  was  opposed  by  Chancellor  Kent,  Daniel  D. 
Tompkins,  Col.  Young,  Mr.  Van  Buren,  Rufus  King,  and  Chief-Justice  Spen- 
cer, and  rejected  by  a  large  majority,  and  the  former  provision  retained,  with 
the  judicial  construction  in  People  v.  Ruggles  fully  recognised.  i^N.  Y.  State 
Conv.  of  i'&2i,  462,  574.)  It  is  true  that  the  gentlemen  differed  in  their  views 
as  to  the  effect  and  extent  of  the  decision,  and  as  to  the  legal  status  of  the 
Christian  religion  in  the  State.  One  class,  including  Chief-Justice  Spencer 
and  Mr.  King,  regarded  Christianity — the  Christian  religion  as  distinguished 
from  Mohammedanism,  etc. — as  a  part  of  the  common  law  adopted  by  the  Con- 
stitution ;  while  another  class,  in  which  were  included  Chancellor  Kent  and 
Mr.  Van  Buren,  were  of  the  opinion  that  the  decision  was  right,  not  because 
Christianity  was  established  by  law,  but  because  Christianity  was  in  fact  the 
religion  of  the  country,  the  rule  of  our  faith  and  practice,  and  the  basis  of  pub- 
lic morals.  According  to  their  views,  as  the  recognised  religion  of  the  coun- 
try, '  the  duties  and  injunctions  of  the  Christian  religion  '  were  interwoven 
with  the  law  of  the  land,  and  were  part  and  parcel  of  the  common  law,  and 
that  '  maliciously  to  revile  it  is  a  public  grievance,  and  as  much  so  as  any  other 
public  outrage  upon  common  decency  and  decorum.'  {Per  Ch.  Kent,  in  de- 
bate, page  576.)  This  difference  in  views  is  in  no  sense  material,  as  it  leads  to 
no  difference  in  practical  results  and  conclusions.  All  agreed  that  the  Chris- 
tian religion  was  engrafted  upon  the  law,  and  entitled  to  protection  as  the 
basis  of  our  morals  and  the  strength  of  our  government,  but  for  reasons  differing 
in  terms  and  in  words  rather  than  in  substance.  Within  the  principle  of  the 
decision  of  The  People  v.  Ruggles,  as  thus  interpreted  and  approved  and  made 
a  part  of  the  fundamental  law  of  the  land  by  the  rejection  of  the  proposed 
amendment,  every  act  done  maliciously,  tending  to  bring  religion  into  con- 
tempt, may  be  punished  at  common  law,  and  the  Christian  Sabbath,  as  one  of 
the  institutions  of  that  religion,  may  be  protected  from  desecration  by  such 


Docufnenis.  155 

laws  as  the  Legislature,  in  their  wisdom,  may  deem  necessary  to  secure  to  the 
community  the  privilege  of  undisturbed  worship,  and  to  the  day  itself  that  out- 
ward respect  and  observance  which  may  be  deemed  essential  to  the  peace  and 
good  order  of  society,  and  to  preserve  religion  and  its  ordinances  from  open 
reviling  and  contempt — and  this  not  as  a  duty  to  God,  but  as  a  duty  to  society 
and  to  the  State.  Upon  this  ground  the  law  in  question  could  be  sustained, 
for  the  Legislature  are  the  sole  judges  of  the  acts  proper  to  be  prohibited,  with 
a  view  to  the  public  peace,  and  as  obstructing  religious  worship,  and  bringing 
into  contempt  the  religious  institutions  of  the  people. 

"  But  as  a  civil  and  political  institution,  the  establishment  and  regulation  of 
a  Sabbath  is  within  the  just  powers  of  the  civil  government.  With  us,  the 
Sabbath,  as  a  civil  institution,  is  older  than  the  government.  The  framers  of 
the  first  Constitution  found  it  in  existence  ;  they  recognised  it  in  their  acts, 
and  they  did  not  abolish  it,  or  alter  it,  or  lessen  its  sanctions  or  the  obligations 
of  the  people  to  observe  it.  But  if  this  had  not  been  so,  the  civil  government 
might  have  established  it.  It  is  a  law  of  our  nature  that  one  day  in  seven  must 
be  observed  as  a  day  of  relaxation  and  refreshment,  if  not  for  public  worship. 
Experience  has  shown  that  the  obsers'ancc  of  one  day  in  seven  as  a  day  of  rest 
'  is  of  admirable  service  to  a  state,  considered  merely  as  a  civil  institution.'  (4 
Bl.  Com.  63.)  We  are  so  constituted,  physically,  that  the  precise  portion  of 
time  indicated  by  the  decalogue  must  be  observed  as  a  day  of  rest  and  relaxa- 
tion, and  nature,  in  the  punishment  inflicted  for  a  violation  of  our  physical 
laws,  adds  her  sanction  to  the  positive  law  promulgated  at  Sinai.  The  stabil- 
ity of  government,  the  welfare  of  the  subject  and  the  interests  of  society,  have 
made  it  necessary  that  the  day  of  rest  observed  by  the  people  of  a  nation  should 
be  unifonn,  and  that  its  observance  should  be  to  some  extent  compulsory,  not 
by  way  of  enforcing  the  conscience  of  those  upon  whom  the  law  operates,  but 
by  way  of  protection  to  those  who  desire  and  are  entitled  to  the  day.  The 
necessity  and  value  of  the  Sabbath  is  acknowledged  by  those  not  professing 
Christianity.  In  December,  1841,  in  the  French  Chamber  of  Deputies,  an 
Israelite  expressed  his  respect  for  the  institution  of  the  Lord's  day.  and  opposed 
a  change  of  law  which  would  deprive  a  class  of  children  of  the  benefit  of  it ; 
and  in  1844,  the  consistory  general  of  the  Israelites,  at  Paris,  decided  to  transfer 
the  Sabbath  of  the  Jews  to  Sunday.  A  similar  disposition  was  manifested  in 
Germany.  {Baylee's  Hist,  of  Sab.  187.)  As  a  civil  institution,  the  selection 
of  the  day  is  at  the  option  of  the  legislature  ;  but  for  a  Christian  people,  it  is 
highly  fit  and  proper  that  the  day  observed  should  be  that  which  is  regarded 
as  the  Christian  .Sabbath,  and  it  does  not  detract  from  the  moral  or  legal  sanc- 
tion of  the  law  of  the  State  that  it  conforms  to  the  law  of  God,  as  that  law  is 
recognised  by  the  great  majority  of  the  people.  In  this  State  the  .Sabbath  ex- 
ists as  a  day  of  rest  by  the  common  law,  and  without  the  necessity  of  legisla- 
tive action  to  establish  it  ;  and  all  that  the  Legislature  attempt  to  do  in  the 
"  Sabbath  laws  "  is  to  regulate  its  observance.  The  body  of  the  Constitution 
recognised  Sunday  as  a  day  of  rest,  and  an  institution  to  be  respected  by  not 
counting  it  as  a  part  of  the  time  allowed  to  the  governor  for  examining  bills 
submitted  for  his  approval.  A  contract,  the  day  of  the  performance  of  which  falls 
on    Sunday,    must,  in  the  case  of  instruments   on    which    d.ays  of  grace   are 


1 56  Ckjirck  and  State  in  the  United  States. 

allowed,  be  performed  on  the  Saturday  preceding,  and  in  all  other  cases  on 
Monday.  {Salter  w.  Burt,  20  IVend.  205.  Avery  y.  Stewart,  2  Conn.  R.  69.) 
Compulsory  performance  on  the  Sabbath  cannot  be  required,  but  the  law  pre- 
scribes a  substituted  day.  Redemption  of  land,  the  last  day  for  which  falls  on 
Sunday,  must  be  made  the  day  before.  {People  v.  Luther,  i  Wend.  42.)  No 
judicial  act  can  be  performed  on  the  Sabbath,  except  as  allowed  by  statute, 
while  ministerial  acts  not  prohibited  are  not  illegal.  {Sayles  v.  Smith,  12 
Wend.  57.  Butler  v,  Kehey,  15  John.  177.  Field  v.  Park,  20  id.  140.) 
Work  done  on  a  Sunday  cannot  be  recovered  for,  there  being  no  pretence  that 
the  parties  keep  the  last  day  of  the  week,  and  riie  work  not  being  a  work  of 
necessity  and  charity.  ( Watts  v.  Van  Ness,  I  Plill,  76.  Palmer  v.  City  of 
New  York,  2  Sand.  318.  Sryiith  v.  Wilcox,  19  Ba7-b.  5S1  ;  S.  C.  25  id.  341.) 
"  The  Christian  Sabbath  is  then  one  of  the  civil  institutions  of  the  State,  and 
to  which  the  business  and  duties  of  life  are,  by  the  common  law,  made  to  con- 
form and  adapt  themselves.  The  same  cannot  be  said  of  the  Jewish  Sabbath, 
or  the  day  observed  by  the  followers  of  any  other  religion.  The  respect  paid 
to  such  days,  other  than  that  voluntarily  paid  by  those  observing  them  as  days 
of  worship,  is  in  obedience  to  positive  lav/.  There  is  no  ground  of  complaint 
in  the  respect  paid  to  the  religious  feeling  of  those  who  conscientiously  observe 
the  seventh  rather  than  the  first  day  of  the  week,  as  a  day  of  rest,  by  the  legis- 
lation upon  that  subject,  and  exempting  them  from  certain  public  duties  and 
from  the  service  of  process  on  their  Sabbath,  and  excepting  them  from  the 
operation  of  certain  other  statutes  regulating  the  observance  of  the  first  day  of 
the  week,  (i  R.  S.  675,  §  70.  Lazus  of  1847,  ch.  349.)  It  is  not  an  infringe- 
ment of  the  right  of  conscience,  or  an  interference  with  the  free  religious  wor- 
ship of  others,  that  Sabbatarians  are  exempted  from  the  service  of  civil  process 
and  protected  in  the  exercise  of  their  religion  on  their  Sabbath.  Still  less  is  it 
a  violation  of  the  rights  of  conscience  of  any  that  the  Sabbath  of  the  people, 
the  day  set  apart  by  common  consent  and  usage  from  the  first  settlement  of 
the  land  as  a  day  of  rest,  and  recognised  by  the  common  law  of  the  State  as 
such,  and  expressly  recognised  in  the  Constitution  as  an  existing  institution, 
should  be  respected  by  the  law-making  power,  and  provision  made  to  prevent 
its  desecration  by  interrupting  the  worship  or  interfering  with  the  rights  of 
conscience,  in  any  way,  of  the  public  as  a  Christian  people.  The  existence  of 
the  Sabbath  day  as  a  civil  institution  being  conceded,  as  it  must  be,  the  right 
of  the  Legislature  to  control  and  regulate  it  and  its  observance  is  a  necessary 
sequence.  If  precedents  were  necessary  to  establish  the  right  to  legislate  upon 
the  subject,  they  could  be  cited  from  the  statutes  and  ordinances  of  every  gov- 
ernment really  or  nominally  Christian,  and  from  the  earliest  period.  In 
England,  as  early  as  the  reign  of  Athelstan,  all  merchandising  on  the  Lord's 
day  was  forbidden  under  severe  penalties  ;  and  from  that  time  very  many 
statutes  have  been  passed  in  different  reigns  regulating  the  keeping  of  the 
Sabbath,  prohibiting  fairs  and  markets,  the  sale  of  goods,  assemblies  or 
concourse  of  the  people  for  any  sports  and  pastimes  whatsoever,  worldly 
labor,  the  opening  of  a  house  or  room  for  public  entertainment  or  amusement, 
the  sale  of  beer,  wine,  spirits,  etc.,  and  other  like  acts  on  that  day.  There  are 
other  acts  which  are  designed  to  compel  attendance  at  church  and  religious 


Documents. 


157 


worship,  which  would  be  prohibited  by  the  Constitution  of  this  State  as  in- 
fringements upon  the  right  to  the  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship.  But  the  acts  referred  to  do  not  relate  to  religious  pro- 
fession or  worship,  but  to  the  civil  obligations  and  duties  of  the  subject.  They 
have  respect  to  his  duties  to  the  state,  and  not  to  God,  and  as  such  arc  within 
the  proper  limits  of  legislative  power.  There  have  been  times  in  the  history 
of  the  English  government,  when  the  day  was  greatly  profaned,  and  practices 
tolerated  at  court  and  throughout  the  realm,  on  the  Sabbath  and  on  other  days, 
which  would  meet  at  this  time  with  little  public  favor  cither  there  or  here. 
But  these  exceptional  instances  do  not  detract  from  the  force  of  the  long  series 
of  acts  of  the  British  parliament,  representing  in  legislation  the  sentiment  of 
the  British  nation,  as  precedents  and  as  a  testimony  in  favor  of  the  necessity 
and  propriety  of  a  legislative  regulation  of  the  Sabbath.  Our  attention  is 
called  to  the  fact  that  James  I.  wrote  a'  Book  of  Sports,'  in  which  he  declared 
that  certain  games  and  pastimes  were  lawful  upon  Sunday.  The  book  was 
published  in  1618,  and  by  it  he  permitted  the  'lawful  recreations'  named, 
'  after  the  end  of  divine  ser\ice  '  on  Sundays,  '  so  as  the  same  be  had  in  due 
and  convenient  time,  without  impediment  or  neglect  of  divine  service.'  The 
permission  is  thus  qualified  :  '  But  withall  we  doe  here  account  still  as  pro- 
hibited all  unlawfull  games  to  be  used  on  Sundayes  only,  as  bcare  and  bull 
baitings,  interludes  and  at  all  times  in  the  meaner  sort  of  people  prohibited, 
bowling.'  {Baylec's  Hist.  Sabbath,  157.)  Lindenmuller's  theatre  would  have 
been  prohibited  even  by  King  James's  Book  of  Sports. 

"  In  most,  if  not  all  the  States  of  the  Union,  laws  have  been  passed  against 
Sabbath-breaking,  and  prohibiting  the  prosecution  of  secular  pursuits  upon 
that  day  ;  and  in  none  of  the  States,  to  my  knowledge,  except  in  California, 
have  such  laws  been  held  by  the  courts  to  be  repugnant  to  the  free  exercise  of 
religious  profession  and  worship,  or  a  violation  of  the  rights  of  conscience,  or 
an  excess  or  abuse  of  the  legislative  power,  while  in  most  States  the  legislation 
has  been  upheld  by  the  courts  and  sustained  by  well-reasoned  and  able  opin- 
ions. ( Updegraph  v.  The  Commonwealth,  11  S.  ^^  R.  394.  Show  v.  State  of 
Arkansas.  5  Eng.  {Arh.)  259.  Bloom  v,  Richards,  2  Ohio  R.  3S7.  \Vame\. 
Smith,  8  Conn,  R,  14.  Johnston  v.  Com.  10  Harris,  102.  State  v.  Anibs,  20 
Mis.  214.     Story  v.  Elliot,  8  Cowen,  27.) 

"  As  the  Sabbath  is  older  than  our  State  government,  was  a  part  of  the  laws 
of  the  colony,  and  its  observance  regulated  by  colonial  laws,  State  legislation 
upon  the  subject  of  its  obser\'ance  was  almost  coeval  with  the  formation  of  the 
State  government.  If  there  were  any  doubt  about  the  meaning  of  the  Consti- 
tution securing  freedom  in  religion,  the  contemporaneous  and  continued  acts 
of  the  legislature  under  it  would  be  very  good  evidence  of  the  intent  and  un- 
derstanding of  its  framers,  and  of  the  people  who  adopted  it  as  tlicir  funda- 
mental law.  As  early  as  17S8,  travelling,  work,  labor,  and  exposing  of  goods 
to  sale  on  that  day  were  prohibited.  (2  Greenl.  89.)  In  1789  the  sale  of  spir- 
ituous liquors  was  prohibited  {Andrews,  467)  ;  and  from  that  time  statutes 
have  been  in  force  to  prevent  Sabbath  desecration,  and  prohibiting  acts  upon 
that  day  which  would  be  lawful  on  other  days  of  the  week.  Early  in  the  his- 
tory of  the  .State  government,  the  objections  taken  to  the  act  under  considera- 


158  Church  and  State  in  the  United  States. 

tion  were  taken  before  the  council  of  revision,  to  an  act  to  amend  the  act 
entitled,  '  An  act  for  suppressing  immorality,'  which  undertook  to  regulate 
Sabbath  observance,  because  the  provisions  as  was  claimed  militated  against 
the  Constitution,  by  giving  a  preference  to  one  class  of  Christians  and 
oppressing  others  ;  because  it  in  some  manner  prescribed  the  mode  of  keep- 
ing the  Sabbath  ;  and  because  it  was  expedient  to  impose  obligations 
on  the  conscience  of  men  in  matters  of  opinion.  The  counsel,  consisting 
of  Governor  Jay,  Chief-Justice  Lansing,  and  Judges  Lewis  and  Benson, 
overruled  the  objections  and  held  them  not  well  taken.  {Street's  JV.  Y. 
Cotcncil  of  Rev.  422.)  I  have  not  access  to  the  California  case  referred 
to  (Ex  parte  Newman,  9  Cal.  502),  but  with  all  respect  for  the  court  pronoun- 
cing the  decision,  as  authority  in  this  State,  the  opinion  of  the  council  of  revision 
thus  constituted,  and  deliberately  pronounced  should  outweigh  it.  If  the  court 
in  California  rest  their  decision  upon  a  want  of  power  in  the  Legislature  to  com- 
pel religious  observances,  I  should  not  dissent  from  the  position,  and  the  only 
question  would  be  whether  the  act  did  thus  trench  on  the  inviolable  rights  of 
the  citizen.  If  it  merely  restrained  the  people  from  secular  pursuits  and  from 
practices  which  the  Legislature  deemed  hurtful  to  the  morals  and  good  order 
of  society,  it  would  not  go  beyond  the  proper  limits  of  legislation.  The  act 
complained  of  here  compels  no  religious  observance,  and  offences  against  it  are 
punishable  not  as  sins  against  God,  but  as  injurious  to  and  having  a  malignant 
influence  on  society.  It  rests  upon  the  same  foundation  as  a  multitude  of  other 
laws  upon  our  statute-books,  such  as  those  against  gambling,  lotteries,  keeping 
disorderly  houses,  polygamy,  horse-racing,  profane  cursing  and  swearing,  dis- 
turbance of  religious  meetings,  selling  of  intoxicating  liquors  on  election  days 
within  a  given  distance  of  the  polls,  etc.  All  these  and  many  others  do  to 
some  extent  restrain  the  citizen  and  deprive  him  of  some  of  his  natural  rights  ; 
but  the  Legislature  has  the  right  to  prohibit  acts  injurious  to  the  public  and 
subversive  of  the  government,  or  which  tend  to  the  destruction  of  the  morals 
of  the  people  and  disturb  the  peace  and  good  order  of  society.  It  is  exclusively 
for  the  Legislature  to  determine  what  acts  should  be  prohibited  as  dangerous 
to  the  community.  The  laws  of  every  civilized  State  embrace  a  long  list  of 
offences  which  are  such  merely  as  mala  p7-ohibita,  as  distinguished  from  those 
which  are  mala  in  se.  If  the  argument  in  behalf  of  the  plaintiff  in  error  is  sound, 
I  see  no  way  in  saving  the  class  of  }>iala  prohibita.  Give  every  one  his  natural 
rights,  or  what  are  claimed  as  natural  rights,  and  the  list  of  civil  offences  will 
be  confined  to  those  acts  which  are  mala  in  se,  and  a  man  may  go  naked  through 
the  streets,  establish  houses  of  prostitution  ad  libitum,  and  keep  a  faro-bank 
on  every  corner.  This  would  be  repugnant  to  every  idea  of  a  civilized  govern- 
ment. It  is  the  right  of  the  citizen  to  be  protected  from  offences  against  de- 
cency, and  against  acts  which  tend  to  corrupt  the  morals,  and  debase  the  moral 
sense  of  the  community.  Regarding  the  Sabbath  as  a  civil  institution,  well  es- 
tablished, it  is  the  right  of  the  citizen  that  it  should  be  kept  and  observed  in 
a  way  not  inconsistent  with  its  purpose  and  the  necessity  out  of  which  it  grew, 
as  a  day  of  rest,  rather  than  as  a  day  of  riot  and  disorder,  which  would  be  effec- 
tively to  overthrow  it,  and  render  it  a  curse  rather  than  a  blessing. 

"  Woodward,  J.,  \n  Johnston  v.  Com.  (10  Harris,  102)  says  :   '  The  right  to 


Documents.  1 59 

rear  a  family  with  a  becoming  regard  to  the  institutions  of  Christianity,  and 
without  compelling  them  to  witness  the  hourly  infractions  of  one  of  its  funda- 
mental laws  ;  the  right  to  enjoy  the  peace  and  good  order  of  society,  and  the 
increased  securities  of  property  which  result  from  a  decent  obscr\-ance  of  the 
Sabbath  ;  the  right  of  the  poor  to  rest  from  labor  without  dim.inution  of  wages;  " 
the  right  of  beasts  to  the  rest  which  nature  calls  for — are  real,  substantial  rights, 
and  as  much  the  subject  of  governmental  protection  as  any  other  right  of  per- 
son or  property.  But  it  is  urged  that  it  is  the  right  of  the  citizen  to  regard  the 
Sabbath  as  a  day  of  recreation  and  amusement,  rather  than  as  a  day  of  rest 
and  religious  worship,  and  that  he  has  a  right  to  act  upon  that  belief  and  en- 
gage in  innocent  amusements  and  recreations.  This  position  it  is  not  neces- 
sary to  gainsay.  But  who  is  to  judge  and  decide  what  amusements  and  pas- 
times are  innocent,  as  having  no  direct  or  indirect  baneful  influence  upon  the 
community,  as  not  in  any  way  disturbing  the  peace  and  quiet  of  the  public,  as 
not  unnecessarily  interfering  with  tlie  equally  sacred  rights  of  conscience  of 
others?  May  not  the  Legislature,  following  the  example  of  James  I.,  which 
was  cited  to  us  as  a  precedent,  declare  what  recreations  are  lawful,  and  what 
are  not  lawful  as  tending  to  a  breach  of  the  peace  or  a  corruption  of  the 
morals  of  the  people  ?  That  is  not  innocent  which  may  operate  injuri- 
ously upon  the  morals  of  the  old  or  young,  which  tends  to  interrupt  the 
peaceable  and  quiet  worship  of  the  Sabbath,  and  which  grievously  of- 
fends the  moral  sense  of  the  community,  and  thus  tends  to  a  breach 
of  the  peace.  It  may  well  be  that  the  Legislature,  in  its  wisdom,  thought  that 
a  theatre  was  eminently  calculated  to  attract  all  classes,  and  the  young  espe- 
cially, on  a  day  when  they  were  released  from  the  confinement  incident  to  the 
duties  of  the  other  days  of  the  week,  away  from  the  house  of  worship  and  other 
places  of  proper  rest,  relaxation  and  instruction,  and  bring  them  under  influ- 
ence not  tending  to  elevate  their  morals,  and  to  subject  them  to  temptation  to 
other  vices  entirely  inconsistent  with  the  safety  of  society.  The  gathering  of 
a  crowd  on  a  Sunday  at  a  theatre,  with  its  drinking-saloons,  and  its  usual,  if  not 
necessary,  facilities  for  and  inducements  to  licentiousness  and  other  kindred 
vices,  the  Legislature  might  well  say  was  not  consistent  with  the  peace,  good 
order  and  safety  of  the  city.  They  might  well  be  of  the  opinion  that  such  a 
place  would  be  '  a  nursery  of  vice,  a  school  of  preparation  to  qualify  young 
men  for  the  gallows  and  young  women  for  the  brothel.'  But  whatever  the 
reasons  may  have  been,  it  was  a  matter  within  the  legiblative  discretion  and 
power,  and  their  will  must  stand  as  the  reason  of  the  law. 

"  We  could  not,  if  we  would,  review  their  discretion  and  sit  in  judgment 
upon  the  expediency  of  their  acts.  We  cannot  declare  that  innocent  which 
they  have  adjudged  baneful  and  have  prohibited  as  such.  The  act  in  sub- 
stance declares  a  Sunday  theatre  to  be  a  nuisance,  and  deals  with  it  as  such. 
The  Constitution  makes  provision  for  this  case  by  providing  that  the  liberty  of 
conscience  secured  by  it  '  shall  not  be  so  construed  as  to  excuse  acts  of  licen- 
tiousness, or  justify  practices  inconsistent  witii  the  peace  and  safety  of  the 
State.'  The  Legislature  have  declared  that  Sunday  theatres  arc  of  this  char- 
acter, and  come  within  the  dcscrijUion  of  acts  and  practices  which  arc  not  pro- 
tected by  the  Constitution,  and  they  are  the  sole  judges.     The  act  is  clearly 


i6o  Clnirch  and  State  in  the  U)iited  States. 

constitutional,  as  dealing  with  and  having  respect  to  the  S.ibbath  as  a  civil  and 
political  institution,  and  not  affecting  to  interfere  with  religious  belief  or  wor- 
ship, faith  or  practice. 

"  It  was  conceded  upon  the  argument  that  the  Legislature  could  entirely 
suppress  theatres  and  prohibit  theatrical  exhibitions.  This,  I  think,  yields  the 
whole  argument,  for  as  the  whole  includes  all  its  parts  and  the  greater  includes 
the  lesser,  the  power  of  total  suppression  includes  the  power  of  regulation  and 
partial  suppression.  If  they  can  determine  what  circumstances  justify  a  total 
prohibition,  they  can  determine  under  what  circumstances  the  exhibitions  may 
be  innocuous,  and  under  what  circumstances  and  at  what  times  they  may  be 
baneful,  so  as  to  justify  a  prohibition. 

"  The  other  points  made  and  argued  are  of  less  general  importance,  as  they 
only  affect  this  particular  case,  and  notv/ithstanding  they  were  ably  and  ingen- 
iously argued,  I  have  been  unable  to  appreciate  the  views  taken  by  the  learned 
counsel  for  the  plaintiff  in  error. 

"  The  law  does  not  touch  private  property  or  impair  its  value.  The  posses- 
sion and  use  of  it,  except  for  a  single  purpose  and  upon  a  given  day,  and  the 
right  to  the  possession  and  use,  is  as  absolute  to  the  plaintiff  in  error  as  it  was 
the  day  before  the  passage  of  the  law.  The  restraint  upon  the  use  of  the  prop- 
erty is  incidental  to  the  exercise  of  a  power  vested  in  the  Legislature  to  legis- 
late for  the  whole  State.  The  ownership  and  enjoyment  of  property  cannot 
be  absolute  in  the  sense  that  incidentally  the  right  may  not  be  controlled  or 
affected  by  public  legislation.  Public  safety  requires  that  powder-magazines 
should  not  be  kept  in  a  populous  neighborhood  ;  public  health  requires  that 
certain  trades  and  manufactures  should  not  be  carried  on  in  crowded  localities  ; 
public  interest  requires  that  certain  callings  should  be  exercised  by  a  limited 
number  of  persons  and  at  a  limited  number  of  places  ;  and  legislative  promo- 
tion of  these  objects  necessarily  qualifies  the  absolute  ownership  of  property  to 
the  extent  that  it  prohibits  the  use  of  it  in  the  manner  and  for  the  purpose 
deemed  inconsistent  with  the  public  good,  but  that  deprives  no  man  of  his 
property  or  impairs  its  legal  value.  The  fact  that  the  plaintiff  in  error  leased 
the  property  with  a  view  to  its  occupancy  for  the  purpose  of  a  Sunday  theatre 
does  not  vary  the  question.  He  might  have  bought  it  for  the  same  purpose, 
but  that  would  by  no  means  lessen  the  power  of  the  Legislature,  or  give  him 
an  indefeasible  right  to  use  it  for  the  purpose  intended,  or  to  establish  or  per- 
petuate a  public  nuisance.  The  power  of  the  Legislature  cannot  thus  be 
crippled  or  taken  from  them.  As  lessee  he  is  pro  hac  vice  the  owner.  He 
took  his  lease  as  every  man  takes  any  estate,  subject  to  the  right  of  the  Legisla- 
ture to  control  the  use  of  it  so  far  as  the  public  safety  requires. 

"  The  contract  with  the  performers,  if  one  exists,  for  their  services  on  the 
Sabbath,  stands  upon  the  same  footing,  and  is  also  subject  to  another  answer 
to  wit,  that  the  contract  for  Sabbath  work  was  void  without  the  law  of  iS6o. 
{Smith  V.  Wilcox,  Watts  v.  Van  Ness,  Palmer  v.  New  York,  supra.)  The 
sovereign  power  must,  in  many  cases,  prescribe  the  manner  of  exercising  indi- 
vidual rights  over  property.  The  general  good  requires  it,  and  to  this  extent 
the  natural  rights  of  individuals  are  surrendered.  Every  public  regulation  in  a 
city  does  in  some  sense  limit  and  restrict  the  absolute  right  of  the  individual 


Documents.  i6l 

owner  of  property.  But  this  is  not  a  legal  injury.  If  compensation  were 
wanted,  it  is  found  in  the  protection  which  the  owner  derives  from  the  govern- 
ment,  and  perhaps  from  some  other  restraint  upon  his  neighbor  in  the  use  of 
his  property.  It  is  not  a  destruction  or  an  appropriation  of  the  property,  and 
it  is  not  within  any  constitutional  inhibition.  (  Vandcrbilt  v.  Adams,  7  Cowen, 
349.  People  V.  Walbridge,  6  id.  512.  Mayor  b'c.  of  New  York  v.  Miln,  11 
Peters,  102.     3  Story's  Const.  Law,  163.) 

"  The  conviction  was  right  and  the  judgment  must  be  affirmed. 

"  The  summary  of  the  points  established  by  this  decision  is  as  follows  : 

GusTAV  LiNDENMULLER,   plaintiff  in    error,  vs.  The  People,  defendants  in 

error. 

"  Every  act  done  maliciously,  tending  to  bring  religion  into  contempt,  may  be 
punished  at  common  law  ;  and  the  Christian  Sabbath,  as  one  of  the  institu- 
tions of  that  religion,  may  be  protected  from  desecration  by  such  laws  as  the 
Legislature,  in  their  wisdom,  may  deem  necessary  to  secure  to  the  community 
the  privilege  of  undisturbed  worship,  and  to  the  day  itself  that  outward  respect 
and  observance  which  may  be  deemed  essential  to  the  peace  and  good  order 
of  society  and  to  preserve  religion  and  its  ordinances  from  open  reviling  and 
contempt. 

"  Upon  this  ground  the  'Act  to  preserve  the  public  peace  and  order  on  the 
first  day  of  the  week,  commonly  called  Sunday,'  passed  April  17,  i860,  pro- 
hibiting exhibitions  or  dramatic  performances  on  Sunday  can  be  sustained  ; 
the  Legislature  being  the  sole  judges  of  the  acts  proper  to  be  prohibited,  with 
a  view  to  the  public  peace,  and  as  obstructing  religious  worship,  and  bringing 
into  contempt  the  religious  institutions  of  the  people. 

"That  act  is  clearly  constitutional,  as  dealing  with  and  having  respect  to  the 
Sabbath  as  a  civil  and  political  institution,  and  not  affecting  to  interfere  with 
religious  belief  or  worship,  faith  or  practice. 

"  In  the  State  of  New  York  the  Sabbath  exists  as  a  day  of  rest  by  the  com- 
mon law,  and  without  the  necessity  of  legislative  action  to  establish  it  ;  and 
all  that  the  Legislature  attempt  to  do  in  the  '  Sabbath  laws,'  is  to  regulate  its 
observance." 


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